R. v. Singh, 2019 BCPC 384

Citation: R. v. Singh 2019 BCPC 384 Date: 20190401 File No: 224051-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. RAJAN SINGH BAN ON PUBLICATION PURSUANT TO S. 486.4(2.2) CCC and s. 517(1) CCC ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Counsel for the Crown: J. Henry Counsel for the Accused: D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: March 18, 19 and 20, 2019 Date of Judgment: April 1, 2019 Introduction

[ 1 ] Rajan Singh is charged on a three-count Indictment alleging that on April 19, 2017, he threatened, unlawfully confined and sexually assaulted [omitted for publication], who I will refer to by her initials A.S. [ 2 ] Mr. Singh entered not guilty pleas to these charges and took this case to trial. During the trial, I heard evidence from A.S., her mother, a police officer, and Mr. Singh. [ 3 ] There is no doubt that A.S. and Mr. Singh engaged in sexual activity, including intercourse, on April 19, 2017, but A.S. testified that she did not consent to engage in sexual intercourse with Mr.

Singh and that she clearly verbally and physically communicated her refusal to Mr. Singh. [ 4 ] Mr. Singh testified that, from his perspective, he and A.S. were engaged to be married on April 19, 2017, and that the sexual activity that they engaged in on that day was at A.S.'s insistence. He said that A.S. consented to the sexual intercourse. [ 5 ] This is one of those very difficult cases where the court has evidence on the central issue from the complainant and the accused that cannot be reconciled.

Accordingly, this case falls to be decided on a credibility assessment of the complainant's evidence to determine if the Crown has proven its case against Mr. Singh beyond a reasonable doubt. Background of A.S. [ 6 ] A.S. comes from a Muslim background. In April 2017, A.S. was 17 years old. She was not living at home with her parents but was living at the [omitted for publication], a resource within the Ministry of Children and Family Development that assists families to reconnect. A.S. did not elaborate on what conflict or problem existed within her family that led to her living away from home.

A.S.'s mother, [omitted for publication], testified she was a cancer patient at that time and she needed some time away from A.S. A.S. was spending weekdays at the [omitted for publication] and her weekends back at home with her family. The status of A.S.'s family and any difficulties within the family were not well developed in the evidence and that is because those issues are not relevant to my decision in this case. [ 7 ] A.S. was active on social media in April 2017. She had a profile on a social media platform called Plenty of Fish.

Her profile page was tendered in evidence and on her profile she indicated that she was looking for marriage. She also testified that she falsely stated on her profile that she was 18 years old. [ 8 ] In April 2017, A.S. was commuting from the resource centre where she was living to her school by public transit. She had to take three buses to get to school and she transferred from one bus to another at the Newton bus exchange. She testified that she left her home early each morning and had to be at school by 8:40 or 8:45 in order to get to her classes on time. A.S. told me that her mother was very strict.

Background of Rajan Singh [ 9 ] Mr. Singh testified that he was born on February 26th, 1997. He testified that he was 19 or 20 years old in April of 2017 - he was 20 years old. He testified that he is 21 years old now but he is actually 22 years old if he was born on February 26th, 1997. [ 10 ] Mr. Singh was born and raised in India. His family is Sikh. Approximately four months prior to April 2017, he left India to come to Canada, so at a time when he was 19 years old. He came alone. [ 11 ] Mr. Singh testified that he decided to come to Canada to seek a better life for himself and because of his love of cars.

He wanted to train to become an auto technician. He said that there is very limited training available in India for auto technicians. Mr. Singh enrolled in an automotive course that started on February 2nd, 2017. He was in Canada on a student visa. His visa permitted him to work up to 20 hours per week and he found work in a restaurant in White Rock as a cook. [ 12 ] Following his arrest on the charges he is facing in this case, he quit his job as a chef and took a job in security after completing a course at the Justice Institute.

I cannot recall if he told me of any security jobs he has held after he qualified for his licence through the Justice Institute. [ 13 ] Mr. Singh's parents continue to reside in India. In 2018, Mr. Singh's sister came from India and lives with him. Mr. Singh's sister is married and in September 2018, her husband arrived from India and moved in with Mr. Singh and his sister. [ 14 ] Mr. Singh remains in Canada on a student visa. How Mr. Singh and A.S. Met [ 15 ] Mr. Singh testified that he created a profile on Plenty of Fish and it was through that social media platform that he met A.S.

A.S. did not dispute how these two young people made their first connection. [ 16 ] Mr. Singh was attracted to A.S. because she was looking for a partner in marriage, as was he. These two began communicating via the Plenty of Fish website. In one of their early communications, A.S. told Mr. Singh that she was 17 years old and not 18, as stated in her profile. [ 17 ] At some point, A.S. and Mr. Singh exchanged cellular phone numbers so that they could send each other text messages and speak over the phone.

Apparently, they also communicated with each other by way of Skype and something called WhatsApp, although nobody told me what that is. I gather that both Skype and WhatsApp enable video communication. [ 18 ] A.S. had a group of friends who were aware of her communication with Mr. Singh. A.S. testified that, at times, she would allow her friends to take control of her phone and send messages to Mr. Singh, which would appear to Mr. Singh to come from A.S. These friends sent provocative messages and, at times, would send messages such as "I love you."

[ 19 ] As a result of this communication between Mr. Singh and A.S., Mr. Singh developed a firmly-held view that he and A.S. were going to get married. He described the couple as fiancés. A.S. testified that she did not share Mr. Singh's view of their relationship and at no time did she say that she was committed to marrying Mr. Singh. [ 20 ] I think it is important to point out that, at this time, when Mr. Singh believed he was engaged to marry A.S., these two young people had not met in person. I was not given much of the communication record between A.S. and Mr.

Singh leading up to their first date but, from what I saw, there is nothing that could reasonably lead either A.S. or Mr. Singh to think that they were in a committed relationship or that they had agreed to get married. In fact, not long after their first communication via Plenty of Fish, A.S. blocked communication from Mr. Singh and deleted her account. She then received a friend request from Mr. Singh via Facebook and their communication resumed. At best, the communication between A.S. and Mr.

Singh could fairly be described as two people looking for a relationship that could lead to marriage. [ 21 ] Exhibit 4 in this trial is an excerpt from a conversation between A.S. and Mr. Singh but it is only A.S.'s contribution to that conversation. For reasons that I find difficult to understand, Mr. Singh's contribution to that conversation was deleted when A.S. deleted her Plenty of Fish account. What I take from the one-sided record of that conversation is that A.S. was sharing limited details of her personal circumstances and that she wanted to find someone interested in marriage.

I point out that she was 17 years old at the time. [ 22 ] Regardless of their differing views as to the status of their relationship, they agreed to meet for a first date on April 11, 2017. The First Date [ 23 ] Mr. Singh testified that he and A.S. met for the first time on April 11, 2017. They took a bus to White Rock and spent time together in the Semiahmoo Mall. A.S. testified that the date was somewhat awkward. She said that Mr. Singh was being "flirty" and telling A.S. that she was cute. During this first date, they went to Shoppers Drug Mart so that A.S. could purchase some hair dye. Mr.

Singh paid for the hair dye. In fact, he testified that he still has the receipt for the hair dye as a reminder of his first gift to A.S. A.S. denied that she asked Mr. Singh for an engagement ring or any ring during their first date. [ 24 ] Mr. Singh gave a somewhat different account of this first date. He said that while he and A.S. were on the bus to White Rock they were holding hands and A.S. was kissing him. A.S. did not testify about any intimate moments during their first date. [ 25 ] Mr. Singh said that, from his perspective, he and A.S. were already engaged to be married prior to their first meeting.

He said that A.S. demanded an engagement ring from Mr. Singh and he further said that during this first date they talked about their plans after they were married. Mr. Singh took a photograph of the two of them during this first date. In the photograph, A.S.'s lips are pursed, as if giving a kiss. A.S. testified that she always purses her lips in photographs and that doing so is not a sign that she has affection for the other person in the photo. [ 26 ] This first date came to an end and Mr. Singh testified that they did not make plans for a second date. [ 27 ] Between April 11 and April 19, 2017, A.S. and Mr.

Singh communicated via text message, Instagram, Facebook, Skype and WhatsApp. [ 28 ] The second time A.S. and Mr. Singh met in person was on April 19, 2017 and that is the date covered by the Indictment in this case. April 19, 2017 [ 29 ] A.S. and Mr. Singh gave very different accounts as to the events that transpired on April 19, 2017. Their separate accounts of the events of that day cannot be reconciled. [ 30 ] A.S. testified that on April 18, 2017, she and Mr. Singh agreed to meet at the Newton bus exchange the next morning while A.S. was en route to school.

While bussing to school on the morning of April 19, A.S. communicated with Mr. Singh that she could not meet with him as she was concerned about getting to school on time. A.S. was not sure if she texted with Mr. Singh or called him on his cellular phone to cancel their second date. [ 31 ] When A.S. arrived at the Newton bus exchange, Mr. Singh was there. According to A.S., Mr. Singh asked her if she wanted to go for coffee with him. A.S. felt that she had enough time to meet for coffee and still make it to school on time so she agreed to join Mr. Singh for coffee. [ 32 ] At that point, Mr.

Singh told A.S. that he had forgotten his wallet at home and he asked A.S. to accompany him back to his home to retrieve his wallet. A.S. agreed. [ 33 ] The trip to Mr. Singh's home involved a short bus ride and then a short walk. While walking to Mr. Singh's home, A.S. testified that they were holding hands. A.S. complained that the walk was too long and that she was cold. She testified that Mr. Singh said that he could "smack her" and that would make her warm. A.S. said that this comment was strange but she did not feel threatened by Mr. Singh. [ 34 ] When they arrived at Mr.

Singh's home, A.S. testified that Mr. Singh expressed concern that A.S. would be seen with him by his landlord because she was a stranger. Once inside the home, according to A.S., Mr. Singh reiterated his concern that he not be seen in the company of an unknown woman, so he asked her to come with him to his bedroom to retrieve his wallet. A.S. obliged. [ 35 ] Once inside Mr. Singh's bedroom, he closed the bedroom door. A.S. testified that Mr. Singh took A.S.'s backpack off of her shoulder and placed it on the ground. Mr.

Singh then rummaged through his black backpack and A.S. thought that he was looking for his wallet. At that point, A.S.'s mother called A.S. on her cellular phone. A.S. asked Mr. Singh to remain quiet because her mother would be angry if she knew that A.S. was with a strange man and not at school. A.S. then said that Mr. Singh told A.S. not to tell her mother that she was in his home or he would hit her. She testified that he seemed serious and angry. She thought he might actually hit her.

[ 36 ] A.S. testified that she spoke with her mother, and was asking questions of her mother about a parent/teacher meeting scheduled at A.S.'s school later that day. She said she remained on the phone with her mother longer than normal. She said that she felt safer while talking with her mother. She also said that it was unusual for her regular telephone calls with her mother to last more than about 30 seconds but that this call went on for a few minutes.

She said that she lied to her mother and told her that she was at school. [ 37 ] Following this call with her mother, A.S. testified that the situation with Mr. Singh became intimate. She said that Mr. Singh was getting "touchy", hugging A.S. and trying to kiss her. He put his hands through her hair. She said that she did nothing to discourage Mr. Singh's advances, although she was uncomfortable. She said that she just went with it but that she was feeling "iffy" about what was happening. [ 38 ] According to A.S., Mr. Singh then pushed her onto a bed in the bedroom. Mr.

Singh's bedroom had three beds in it, as he had several roommates living with him. She testified that he was trying to kiss her but she was moving her head to avoid his kisses. She said he was touching her and she said nothing. [ 39 ] A.S. said that once she was pushed onto the bed she was angry and scared. She said that she did not get up and leave because she was afraid that Mr. Singh would hit her as he had threatened to do when A.S.'s mother called. [ 40 ] A.S. testified that once she was on the bed, Mr. Singh climbed on top of her and was straddling her. She said that she asked Mr.

Singh, "What are you doing?" And said, "This isn't okay." She said that Mr. Singh continued to try and kiss her. She kept moving her head. She said that he was touching her chest, back and buttocks. [ 41 ] A.S. said that she began to push against Mr. Singh and said, "No." She asked Mr. Singh to stop what he was doing a few times. [ 42 ] According to A.S., Mr. Singh then started to remove his clothes and then he removed A.S.'s clothes. In cross-examination, A.S. agreed that she could not remember precisely the order in which the clothes were removed or whose clothes came off first. A.S. testified that Mr.

Singh removed all of her clothes except for her bra. She said that he removed her breasts from her bra and sucked on her nipple. She said that he touched her vagina and inserted his finger into her. She testified that she told Mr. Singh to stop but he persisted. She said that she then did not protest any longer. She said she froze, she was scared, and she did not know what to do. [ 43 ] According to A.S., Mr. Singh then removed his boxer shorts and engaged in sexual intercourse with her. After a short period of time, A.S. said that Mr. Singh ceased intercourse briefly to retrieve a condom.

She said that he reached over her head and got a condom from his backpack, placed the condom on himself and then continued the intercourse. [ 44 ] A.S. said that during this intercourse she started to bleed from her vagina. When Mr. Singh noticed the blood, she said that he became "grossed out" and stopped the intercourse. She said Mr. Singh became upset, told her to clean herself up and asked her to leave. [ 45 ] A.S. put her clothes on, left Mr. Singh's home and returned to the Newton bus exchange. She said she did not know what to do and called her friend J.

J allegedly told her to get to school and report the sexual assault to someone at her school. While on the bus to school, A.S. sent Mr. Singh a text message and he responded. The content of this text exchange is as follows: A.S.: I told you no, that I didn't want to have sex. Mr. Singh: What happened now, babe? A.S.: I'm not your babe. I didn't want to have sex. Mr. Singh: What happened now, baby? HLOO [ 46 ] Once A.S. got to her school, she reported the sexual assault to her counsellor and she was then taken to the hospital for a medical examination.

At the hospital, she gave a statement to the police and shortly thereafter Mr. Singh was arrested at the restaurant where he was working. [ 47 ] Mr. Singh's account of the events of April 19, 2017 differs in many material ways from A.S.'s account as summarized above. [ 48 ] According to Mr. Singh, he and A.S. had not made plans to meet at the Newton bus exchange on the morning of April 19, 2017. Mr. Singh said that on the morning of April 19, A.S. called him unexpectedly while he was on his way to school and she asked him to meet her at the bus exchange.

He said that she told him that she was going to miss school to spend time with him and that she was his girlfriend and he should come and meet her. [ 49 ] Mr. Singh then went to the Newton bus exchange, met A.S., and she allegedly said that she wanted to go to his house. According to Mr. Singh, he told A.S. that his house was quite messy as he had several roommates and she said that was fine. Mr. Singh denied ever asking A.S. to go with him for coffee. [ 50 ] Mr. Singh and A.S. took a short bus ride and walked to his home. He said that they were holding hands. In his testimony, Mr.

Singh gave me the impression that A.S. was directing what the two of them were doing. When they arrived at his home, Mr. Singh said that he told A.S. that one of his roommates was at home but A.S. never saw this roommate while she was there. [ 51 ] Once in the home, they went to Mr. Singh's bedroom. Mr. Singh confirmed that A.S.'s mother called while they were in his bedroom and she asked Mr. Singh to be quiet while she took the call from her mother. Mr. Singh denied the allegation that he threatened to hit A.S. if she told her mother that she was with him at his home. [ 52 ] After the phone call, Mr.

Singh testified that A.S. asked if she could lie down on the double bed in the bedroom. There were two single beds and one double bed in the bedroom. A.S. got onto the double bed and Mr. Singh went to lie down on his single bed. Mr. Singh then testified that A.S. invited him to join her on the double bed and Mr. Singh checked with A.S. that she was okay with him

doing so. A.S. said that she was fine with him joining her on the double bed. [ 53 ] Once on the double bed with A.S., Mr. Singh said that she started kissing him and touching his penis. She allegedly told Mr. Singh to remove his clothes and that it was okay with her that he do so. Mr. Singh got back onto the bed with A.S. and he said that she grabbed his hand and put it to her vagina. He testified that she told him she "wanted digital penetration." He said that she did not object to any sexual activity at any time. According to Mr.

Singh, A.S. then said, "Let's have sex," and she pulled her pants down to her knees. She said that she was on birth control and that he did not need to worry about a condom. Mr. Singh testified that he checked to make sure that she wanted to have intercourse and she said, "Yes." Mr. Singh said that throughout all of the sexual activity they engaged in on April 19, 2017, he never touched or kissed A.S.'s breasts.

He said that her bra remained on and her breasts were not exposed. [ 54 ] He said that they started sexual intercourse and then he remembered that his roommate had a supply of condoms, so he got off the bed, went into the bedroom closet and retrieved one of his roommate's condoms. He said that he had not eaten anything that morning and that he was feeling weak. According to Mr. Singh, A.S. said that it was okay and to just penetrate her vagina. [ 55 ] Mr. Singh then began to digitally penetrate her vagina but he felt something sticky and realized that A.S. was bleeding. Mr.

Singh was concerned about the bleeding but he said that A.S. reassured him that everything was fine. [ 56 ] Mr. Singh testified that A.S. then said she wanted to go to school, so they agreed that they would both go to school. He said that he accompanied A.S. back to the Newton bus exchange and then he returned home to shower before heading off to school. [ 57 ] Mr. Singh was clear that at no point on April 19, 2017, did A.S. object to their sexual activity. In fact, he testified that the sexual activity was A.S.'s idea and at her initiative.

He said that he confirmed with her that she wanted the sexual activity and she agreed. [ 58 ] Mr. Singh testified that he received a text message and responded, as quoted above, and that he tried to call A.S. numerous times during the day on April 19, 2017 but A.S. did not answer his calls. [ 59 ] Mr. Singh said that he received a call from the police while he was at work during the evening of April 19 and he told the police that he could not leave work.

The police attended at the restaurant where he was working, arrested him for sexually assaulting A.S. and he was later released. [ 60 ] As I mentioned earlier in this decision, the separate accounts as to what happened between A.S. and Mr. Singh on April 19, 2017 cannot be reconciled. Accordingly, my decision in this case comes down to my credibility assessment of A.S. and an assessment of whether Mr. Singh's evidence raises a reasonable doubt in the case advanced by the Crown. [ 61 ] Before turning to my assessment of A.S.'s credibility, I want to mention two other areas of evidence in this trial.

Evidence of Ms. [omitted for publication] and Mr. Singh's Evidence of Some Video Communication With A.S. [ 62 ] [Omitted for publication] testified about her telephone conversation with her daughter, A.S., on the morning of April 19, 2017. She said that she regularly checked in with her daughter to make sure that A.S. was at school. Ms. [omitted for publication] confirmed A.S.'s testimony that ordinarily their phone calls were brief, lasting less than a minute.

She said that during her phone call with A.S. on April 19, A.S. was particularly talkative and repeatedly asked if Ms. [omitted for publication] would be present for the parent/teacher meeting scheduled later that day. Despite Ms. [omitted for publication]’s assurances that she would be at A.S.'s school for the meeting, A.S., kept seeking assurances that Ms. [omitted for publication] would be there. [ 63 ] Ms. [omitted for publication] also said that A.S. sounded anxious during their phone call and that A.S.'s breathing gave Ms. [omitted for publication] concern that something was wrong.

Ms. [omitted for publication] asked A.S. if she was okay and A.S. replied that she was fine. [ 64 ] Following this phone call, Ms. [omitted for publication] was so troubled by what she perceived to be A.S.'s anxiety during the call that she phoned her husband. Ms. [omitted for publication]'s husband told her that everything would be fine and that she would see A.S. later that day at the parent/teacher meeting. Ms. [omitted for publication] chose not to call A.S. back because A.S. had told her she was at school and A.S. turned off her cellular phone while at school.

Ms. [omitted for publication] learned later that morning that A.S. was at the hospital because she had reported that she had been sexually assaulted. [ 65 ] It is my view that Ms. [omitted for publication]'s evidence is significant corroborative evidence of the account of the events of April 19, 2017, given by A.S. The length of the phone call was unusual. A.S. seemed anxious and her breathing concerned Ms. [omitted for publication]. Ms. [omitted for publication]'s instincts were telling her that something was wrong, so she called her husband. [ 66 ] If the events of April 19, 2017 occurred as described by Mr.

Singh, I do not think that A.S. would have prolonged her telephone call with her mother but, rather, she would have ended the call quickly, as normal, so that she could engage in the intimacy that Mr. Singh testified she wanted. [ 67 ] The other piece of evidence that came from Mr. Singh's testimony is that he alleged that during his video communication with A.S. after their first date and prior to April 19, 2017, she would tell him that she was "horny" and she would expose her naked breasts to him.

These allegations were not put to A.S. during her cross-examination so I do not have her evidence in response to these allegations. Accordingly, I am able to place limited weight on this evidence from Mr. Singh. [ 68 ] However, it is not lost on me that Mr. Singh wants me to conclude that A.S. conducted herself in this way during their video communication, yet, he never suggested that they

schedule a second date. He testified that, in his mind, he and A.S. were fiancés, they loved each other and his 17-year-old wife-to- be was telling him that she was horny and exposing herself to him yet he did not arrange a second date. I find that evidence to be highly unlikely. In fact, I do not believe Mr. Singh on this point. His evidence is so improbable that I do not accept it as true.

Issues and Analysis Credibility Assessment of A.S. [ 69 ] A.S. testified remotely via closed-circuit television. She was in a room with a support person. I was impressed by A.S.'s testimony. She spoke calmly and with certainty. She was not overly emotional and was not given to exaggeration. She was clear and precise about much of her evidence. She was not seriously shaken in cross-examination. She answered the questions she was asked and did not avoid answering those questions, nor did she give nonresponsive answers.

I was left with the impression that she was sincere and forthright when testifying. [ 70 ] However, Mr. Singh points to some of A.S.'s evidence to call into question her reliability. [ 71 ] Mr. Singh noted that A.S. posted untrue information on her Plenty of Fish profile saying she was 18 years old when, in fact, she was 17 years old. He also points out that A.S. lied to her mother during the telephone call in Mr. Singh's bedroom when she told her mother that she was at school. Mr. Singh emphasises that A.S. did not testify truthfully about receiving some money from Mr. Singh.

A.S., quite confidently, denied that she ever asked Mr. Singh for money or that he gave her money; but Mr. Singh was able to produce a text message conversation that confirmed that, in fact, he sent A.S. $50 at some point prior to April 19, 2017. [ 72 ] A.S. admitted some of the suggestions put to her during cross-examination and refused to admit other allegations. She was confronted with the suggestion that she told Mr. Singh that she wanted to get married. A.S. admitted that she had said so but she flatly denied that she told Mr. Singh that she wanted to marry him. I accept A.S.'s evidence on this point.

How could she have told Mr. Singh that she wanted to marry him when they had not yet met in person? The suggestion that she did so is ludicrous. [ 73 ] A.S. was confronted during cross-examination as to whether she told the police during her statement that Mr. Singh told her one of his roommates was home on the morning of April 19, 2017. A.S. denied that Mr. Singh had said that but when shown her statement to the police, she conceded that she had told the police differently. I do not find this contradiction to be of any moment. A.S. said that Mr.

Singh asked her to accompany him to his bedroom because he did not want his landlord or anyone else to see them together as she was not known to his landlord or others. [ 74 ] Regardless of this difference between her evidence at trial and her statement to the police, A.S. maintained throughout that she never saw a roommate during the events of April 19, 2017 and Mr. Singh did not dispute that evidence. I did not hear evidence from any of Mr.

Singh's roommates that the roommate was, in fact, in the home on April 19, 2017. [ 75 ] With regards to A.S. posting on Plenty of Fish that she was 18 years old rather than honestly posting that she was 17 years old, that deception is mitigated by the fact that Plenty of Fish profiles are made to attract the interest of others. I would not be surprised to learn that some people misrepresent their age in order to attract responses from others but, more importantly, long before A.S. and Mr. Singh met in person she told him she was 17 years old and not 18.

So she has demonstrated that she is not a deceptive person and was willing to be honest about her age up front and before she went on her first date with Mr. Singh. [ 76 ] The challenge to A.S.'s testimony about receiving money from Mr. Singh is somewhat more problematic. She very confidently denied that she asked for and received money from Mr. Singh. However, she was not confronted during cross-examination with the actual text message conversation in which Mr.

Singh agreed to give her some money and she confirmed that she had received the money. [ 77 ] In my view, the failure to put the text message conversation to A.S. significantly reduces the suggestion that A.S. gave unreliable information. In each instance where A.S. was confronted with some evidence that contradicted her evidence, she conceded she was wrong. She was not given the opportunity to consider the email conversation and reflect on her evidence. Also, I note that the money Mr. Singh gave to A.S. had to be repaid by A.S.

So strictly speaking, he did not give her money but loaned her money. [ 78 ] I am not sure that distinction makes a difference but this is the only part of A.S.'s evidence that is unreliable. I find that this part of A.S.'s evidence does not call into question all of her evidence on the critical points of this case. Her evidence generally was internally consistent and it was consistent with other evidence placed before me. The evidence of A.S.'s phone call with her mother, in my view, is a significant piece of corroborative evidence.

A.S.'s demeanour during the call with her mother concerned Ms. [omitted for publication] to such a degree that she felt compelled to call her husband to report her concerns. A.S.'s text message quoted earlier in this decision when she had left Mr. Singh's home and spoken with her friend J., is also strongly corroborative of her evidence that she had been sexually assaulted. Mr. Singh's reply in that text message conversation is difficult to understand given that he was being accused of non- consensual sexual intercourse. Nothing in Mr.

Singh's reply could be construed as a denial of the allegation. [ 79 ] The difference in the evidence of A.S. and Mr. Singh around the arrangement to meet on April 19 cannot be reconciled. A.S. said that on April 18 they had made plans to meet the next day while she was on her way to school. She testified that while en route to school she communicated with Mr. Singh that she would not meet him. A.S. was concerned about missing school. As well, she had a scheduled parent/teacher meeting with her mother at the school that day. [ 80 ] Mr.

Singh testified that he received an unexpected phone call from A.S. while he was on his way to school, asking him to meet with her at the Newton bus exchange because she wanted to go with him to his house. He said that she told him she was his girlfriend and was choosing to miss school to be with him so he should meet up with her. [ 81 ] Of these two accounts as to how it was that A.S. and Mr. Singh came to meet on April the 19, 2017, I accept A.S.'s evidence and reject Mr. Singh's evidence. There is no evidence before me that A.S. was prone to missing school on a whim. She had only spent time with Mr.

Singh on the one occasion at the Semiahmoo Mall. She said that their first date was awkward. I do not accept that A.S. would choose not to go to school in order to arrange a second date with Mr. Singh with no notice to Mr. Singh. I do not accept that A.S. would try and arrange an opportunity to go with Mr. Singh to his home in order to participate in sexual activities on the same day she was expected to attend school for a parent/teacher meeting with her very strict mother. [ 82 ] In fact, I do not accept that Mr. Singh would not have pursued A.S. given that, in his mind, they were engaged to be married, they

had allegedly spoken of plans following their marriage, and A.S. is in the habit of exposing herself to him during video conversations and telling him she was horny. Mr. Singh's account of all of this is so improbable that it defies belief. [ 83 ] A.S.'s account of what led to their meeting on April 19 made sense and is consistent with a common-sense evaluation of the evidence. [ 84 ] Mr. Singh's account of what led to their meeting on April 19 does not accord with the surrounding evidence. [ 85 ] As for the events that occurred on April 19, to accept Mr.

Singh's account I would have to find that the sexual activities were all at the insistence of A.S. and Mr. Singh simply complied with her wishes. But I would also have to conclude that after engaging in consensual sexual activities with Mr. Singh, A.S. immediately turned on Mr. Singh and accused him of a sexual crime. There is no basis in the evidence before me to account for such a vindictive and malicious intent on the part of A.S. [ 86 ] I am mindful of the case of Faryna v. Chorney , which has often been cited in cases where the court is grappling with a credibility assessment. Mr.

Justice O'Halloran said this is Faryna v. Chorney : The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. [ 87 ] In Bradshaw v.

Stenner , Madam Justice Dillon said this about credibility assessments: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides . . .

The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally ...

Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. [ 88 ] In short, Mr. Singh's evidence does not accord with common sense. His evidence that he and A.S. had committed to themselves to wedlock before they ever met in person defies common sense. His evidence that their trip to his house was all A.S.'s idea and came as a surprise to him makes no sense in light of the scheduled parent/teacher meeting scheduled for later that morning.

His evidence that all the sexual activity that morning was at A.S.'s request does not accord with Ms. [omitted for publication]'s evidence about her concerns following her phone call with her anxious daughter. His evidence that he accompanied A.S. to the bus exchange following their consensual sexual intimacy only to receive immediately thereafter A.S.'s text message accusing him of non-consensual sexual intercourse does not accord with common sense or "the probabilities affecting the case as a whole." [ 89 ] Accordingly, I find that A.S.'s testimony is credible and reliable.

Her evidence is both internally consistent and is consistent with all of the surrounding circumstances. Mr. Singh's evidence is not consistent with the surrounding circumstances or with common sense. Has the Crown Met its Burden to Prove the Offences in the Indictment Beyond a Reasonable Doubt? [ 90 ] Subject to what I will say below regarding Mr. Singh's evidence and the R. v. W.(D.) analysis, I make the following findings with respect to the three counts against Mr. Singh in this trial. [ 91 ] With respect to the allegation that Mr.

Singh threatened A.S., I find the Crown has proven beyond a reasonable doubt that, while in his bedroom and when A.S. received a telephone call from her mother, Mr. Singh threatened to hit A.S. if she told her mother that she was with Mr. Singh. A.S. testified that when Mr. Singh made this threat he appeared serious and angry. I find that A.S. felt threatened by Mr. Singh as she deliberately extended her phone call with her mother beyond what was normal or customary during a phone call with her mother. Ms. [omitted for publication] sensed A.S.'s anxiety and asked her daughter if she was okay.

Immediately after the phone call with A.S., Ms. [omitted for publication] called her husband out of her concern for the wellbeing of A.S. [ 92 ] While I know that in a case alleging a threat it is not material whether the complainant actually felt threatened I find, on the evidence in this case, that Mr.

Singh made the threat to hit A.S., that he was serious when he made that threat, and that he intended the threat to cause fear in A.S. [ 93 ] With respect to the charge of unlawful confinement of A.S., the Crown argues that by taking A.S. into his bedroom, closing the bedroom door, climbing on top of A.S. after pushing her onto the bed and then pinning her to the bed while he engaged in non- consensual sexual activity and refusing to get off A.S. when she was pushing Mr. Singh to get off her and telling him she did not want to engage in sexual activity, Mr.

Singh unlawfully confined A.S. [ 94 ] A.S. testified as to why she did not just get off the bed and leave Mr. Singh's bedroom when the non-consensual sexual activity started. A.S. testified that she was scared from Mr. Singh's threat to hit her. She was unsure that she could get out of the house without Mr. Singh becoming physically violent with her. She also pointed out the fact that she was basically naked and she did not want to run out of the house undressed. [ 95 ] In R. v. Gratton , Mr.

Justice Cory refined the legal definition of unlawful confinement to the following: . . . a physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physical application of bindings. [ 96 ] The refinement by Justice Cory changed the phrase from "a total physical restraint" to simply "a physical restraint."

[ 97 ] I am satisfied that following his threat to A.S. and after pushing her down onto the bed and then straddling her while he engaged in non-consensual sexual activities with A.S., Mr. Singh unlawfully confined A.S. He engaged in a physical restraint by straddling her. His restraint was clearly contrary to A.S. wishes. A.S. unwilling submitted to restraint out of her fear from the earlier threat to hit her and the fact that she was essentially naked and did not want to run out of the bedroom in the house without any clothes on. [ 98 ] I find that as a result of all the foregoing, Mr.

Singh deprived A.S. of her liberty to leave his bedroom and by doing so he unlawfully confined A.S. [ 99 ] With respect to the charge of sexually assaulting A.S., I am guided in my analysis and conclusions by the Supreme Court of Canada's decision in R. v. Ewanchuk where the court set out the test to be applied by trial courts in cases alleging sexual assault. I have considered the test as laid out by the Supreme Court of Canada in Ewanchuk. [ 100 ] In the case before me, the accounts of what occurred on April 19, 2017, are so diametrically opposed that they cannot be reconciled. [ 101 ] Mr.

Singh testified that all the sexual activity between him and A.S. on April 19 was at A.S.'s request and pre-approved by her following his inquiries to make sure she really wanted what she was asking for. [ 102 ] A.S. was equally clear in her evidence that not only did she not want to engage in sexual intercourse or the digital penetration by Mr. Singh; she told him to stop and tried to push him off of her. [ 103 ] The evidence in this case cannot support a defence of honest but mistaken belief in A.S.'s consent and Mr.

Singh did not advance that defence. [ 104 ] I find on the evidence of A.S. that on April 19, 2017, Mr. Singh touched A.S. in a sexual nature without her consent and that he intended to do so. There is no dispute in the case before me that Mr. Singh touched A.S. in a sexual nature and intended to do so. The only issue is whether A.S. consented to that sexual touching and I find that she did not. [ 105 ] I reach that finding for all the reasons articulated above. I reject Mr. Singh's evidence that the sexual activity was consensual. His evidence is not credible and does not raise a reasonable doubt.

Looking at the evidence as a whole, I find the Crown has proven each of the allegations against Mr. Singh beyond a reasonable doubt. [ 106 ] Mr. Singh, if you could please stand up. [ 107 ] For those reasons, Mr. Singh, I find you guilty of the three counts alleged against you in this Indictment. I find you guilty of threatening A.S., I find you guilty of unlawfully confining A.S., and I find you guilty of sexually assaulting A.S. All of those crimes were committed by you against A.S. on April 19, 2017, in Surrey, British Columbia. (REASONS FOR JUDGMENT CONCLUDED