R. v. Kapoor, 2011 ONCJ 120

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code has been made in this proceeding. These sections of the Criminal Code provide: 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1 )(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3 )( b). 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . COURT FILE No.: Brampton 09-14914 DATE: March 1, 2011 Citation: R. v.

Kapoor , 2011 ONCJ 120 ONTARIO COURT OF JUSTICE Central West Region BETWEEN : HER MAJESTY THE QUEEN — AND — TAJINDER SINGH KAPOOR Before Justice Richard H.K. Schwarzl Heard on November 5, 2010 and January 24, 2011 Reasons for Judgment released on March 1, 2011

Mr. Carson Coughlin.................................................................................... for the Crown Mr. Bally Hundal....................................................................................... for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [1.] Tajinder Singh Kapoor (the Accused) is on trial for allegedly sexually assaulting L.P. (the Complainant) by touching her bodyincluding her breasts without her consent. It is alleged that this offence occurred on November 28, 2009 inside the Complainant’s homewhile Ms. P. was exercising and the Accused was there to repair a leaky toilet.

The Accused denies ever touching the Complainant forany reason, sexual or otherwise. [2.] The central issue is whether or not the Crown has proven Mr. Kapoor’s guilt to the criminal standard of proof based on thetotality of the evidence. At all times I am cognizant of the presumption of Mr. Kapoor’s innocence as well as the unshifting burden uponthe Crown to prove his guilt beyond a reasonable doubt. In assessing the evidence I am mindful of the principles set out by the SupremeCourt of Canada in numerous precedents including R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 and its progeny. 2.0: THE EVIDENCE 2.1: Prosecution Evidence 2.1.1: L.P. [3.] In November 2009, L.P. was 18 years old. She lived in a small basement apartment in Brampton with her parents and heryounger brother, L.. On Saturday, November 28, she and her brother were home while her parents were out. Sometime in the early partof the day, some workmen repaired air ducts in the kitchen. The Accused was not one of these men. Ms. P. left the apartment while theduct repairs were underway.

When she returned later in the afternoon, they were finishing up. [4.] Shortly before the repairmen left, Ms. P. changed into work-out clothes and started exercising in the living room. Because ofthe presence of the workmen, she had on full pants and a tank- or tee-top on to ensure discretion and privacy. She was also listening tomusic with an ipod. The volume was raised, but not so loud as to hurt her ears. The repairmen left a few minutes later, leaving only herbrother and her at home.

Her brother was in his room either watching TV or listening to music with his door closed. [5.] After the repairmen left, the Complainant took off her pants and her top, leaving her wearing only a sports bra and sport shorts. She continued to exercise and after 15 minutes or so, she heard the toilet flushing. The toilet had not been working properly recently soshe took off her earphones and went to see if it was flooding. The Complainant could not see the washroom from where she wasworking out. [6.] When she got to the washroom she saw the Accused, whom she had never seen before. She was surprised to see Mr.

Kapoorbecause she had not been expecting another repairman that day, nor had the landlord given any notice of his attendance. She said that theAccused did not knock or announce himself upon entering. She agreed that she was irked, but denied being agitated, by his unannouncedpresence. [7.] When she saw the Accused, Ms. P. said hello and then walked back into the living room to cover up given her modest attire. She said that had she been aware that a stranger was in the house, she would have put something over her exercise clothes beforeinvestigating what was happening in the washroom.

She put on a long nightshirt-like garment and started back to the washroom tointroduce herself. [8.] When she turned around to head back to the washroom, she said the Accused was in the hall between the washroom and theliving room. Mr. Kapoor asked her to come to the bathroom with her and show her what was wrong with the toilet. Ms. P. said that shefelt uncomfortable (or in her words, “weirded out”) because she had expected the Accused to wait in the bathroom while she put moreclothes on and not come out to where he could see her.

[ 9 .] The Complainant gave evidence that when they got inside the bathroom, the Accused told her that the toilet seemed to be working fine and that he couldn’t find anything wrong with it. He flushed it several times in her presence and told her that there was nothing wrong with it, but she said there was. The Accused was bent over as he flushed the toilet while she stood by.

The Complainant agreed that the Accused never spoke to her about anything other than the toilet. [ 10 .] The Complainant said that after flushing the toilet several times, the Accused stood up and touched her thigh below her hemline between one and three times in a light, grabbing manner. She said she tried to ignore it and wondered if there was something mentally wrong with him. Nonplussed, she backed off a little but continued speaking with the Accused about the toilet. [ 11 .] She said that after stepping back Mr. Kapoor moved forward, reached out and cupped and squeezed both of her breasts.

She described the touching as “just like a child would, not so hard, but like he grabbed it like a child will with a mental disability.” She testified that she was both offended and confused by this unwelcomed behaviour. [ 12 .] Ms. P. left the bathroom and put on a thick bath robe over her nightshirt and sportswear. She then went upstairs to ask the landlord to come downstairs and stay with her. The landlord came downstairs with her. [ 13 .] Ms. P. said that the landlord came downstairs with her and spoke with the Accused briefly in either Hindi or Punjabi.

She said that the landlord then turned to go back upstairs without escorting the Accused away. The Complainant said she expected the landlord to usher the Accused out of the apartment or to at least to stay until the work was done because she was uncomfortable. [ 14 .] The Complainant testified when the landlord had his back to them, the Accused reached under her robe and touched her stomach. She reacted by pushing Mr. Kapoor away and told him to get out because the landlord was leaving.

She yelled at him that she would call the cops if he didn’t leave immediately, however he said he wouldn’t leave and kept working. [ 15 .] The Complainant testified that following the Accused’s refusal to leave right away, the landlord and the Accused continued talking. She went back upstairs intending to speak with the landlord’s wife, whom she hoped would be more understanding than her husband. Ms. P. said that while she begged the landlord and his wife to send the Accused away, the landlords wanted the Accused to stay and finish the plumbing repair.

The Complainant recalls telling the landlords that she needed the Accused to leave because he touched her and was upset about not getting any notice of his attendance. [ 16 .] Ms. P. testified that she did not want to cause a scene nor did she want to call the police because she felt that she could handle the situation herself. She said that at first she thought the Accused was mentally disabled but when he touched her breasts she knew he wasn’t feeble and that is when she wanted him out. When the Accused wouldn’t leave she waited outdoors until her mother came home.

The Complainant said that after telling her mother what happened, her mother told her that the situation had to be reported to the police. She testified that involving the police was inconvenient because that interfered with her plans for the evening. [ 17 .] The Complainant testified that between twenty and thirty minutes passed from the time she first saw the Accused until her mother came back home. She testified that she didn’t call the police, but either her mother or her brother did. 2.1.2: L.P. [ 18 .] L.P. was 15 years old at the time of this occurrence.

On Saturday, November 28, 2009 he was in his room listening to music on his ipod using one earpiece while his sister, L.P., was in the living room. He couldn’t remember exactly what she was doing or wearing, but thought that she was exercising. [ 19 .] He said that around 5:30 that afternoon, he looked out of his room and saw a plumber working on the toilet. After watching him for a minute, the witness went back into his room and resumed listening to music. [ 20 .] Once back inside his room, Mr. P. said that he heard his sister yell, “Stop touching me!” once and “Get out!” twice from the

area of the washroom. On hearing the yelling he went to his door and saw that his sister was shouting at the Accused. He described his sister as being very angry. [ 21 .] Mr. P. testified that someone came from upstairs and everybody but him went outside.

Shortly thereafter, his mother came inside and asked him to call the police so he did. [ 22 .] In cross-examination, the witness agreed that in one part of his statement to police he told them, “I heard my sister yelling at someone to get out of here.” He further agreed that he told the police in his statement at another point, “When I went outside she was yelling to stop touching her and to get out.” He explained that by “outside” he meant outside of his room, not out-of-doors. [ 23 .] Mr.

P. testified that he and his sister have never talked about this case. 2.2: Defence Evidence 2.2.1: Tajinder Singh Kapoor [ 24 .] Mr. Tajinder Singh Kapoor is 45 year old, married, and has two teen-aged children. He has worked for eighteen years a handyman, doing mainly basement work including dry walling, painting, and plumbing. [ 25 .] On November 28, 2009 Mr. Kapoor and his wife were out shopping during the afternoon. While out, he received a call from the landlord to come and fix a faulty toilet.

He arrived about an hour and a half later, spoke with the landlord for a few minutes, and then entered the basement after being directed there by the landlord. Mr. Kapoor testified that he had been to the basement apartment the day before to fix the same toilet. He said no one was home when he repaired the toilet the previous day. [ 26 .] The Accused went downstairs into the apartment but didn’t notice anybody. He went directly into the bathroom to work on the toilet.

While in the bathroom, he saw the Complainant and her brother, but did not speak to either of them. [ 27 .] Water came onto the floor after he used a plunger. Wanting to see where the water would flow, he left the bathroom and saw the Complainant exercising. He said that he was standing about three feet away from her for a minute or two watching where the water was flowing and then returned to the bathroom. In cross-examination, when asked if he saw Ms. P. exercising, he said, “No.” [ 28 .] On returning to the bathroom, Mr. Kapoor tried the plunger again then opened the toilet to work on it.

He testified that the occupants of the home then noticed him and began yelling at him. He said that the Complainant, who was wearing short, small clothes, was upset at seeing him there. He described her as being very angry and screaming at him. Mr. Kapoor testified that he did not speak with her because he doesn’t know any English. He did, however, acknowledge that he understood what “get out” meant and that he was uncomfortable with being yelled at to leave. He agreed that he did not want to work there with the Complainant yelling at him, but continued working anyway.

He said that he did not hear the Complainant tell him not to touch her. [ 29 .] The Accused testified that Ms. P. went upstairs while he kept working. Not long after, she and the landlord came downstairs together. He said the Complainant was screaming for him to get out while all three stood in the crowded bathroom. He said that “nothing happened after that” other than he told the landlord he would only continue working if the landlord stayed. [ 30 .] The landlord and the Complainant then left together and went back upstairs while he continued working. He said that the landlord came back downstairs and told Mr.

Kapoor to leave because “She is upset from last night.” He said that he then went upstairs with the landlord. Mr. Kapoor then said that the landlord’s comment was made upstairs, not downstairs. The Accused testified that no one ever told him why the Complainant was upset.

[ 31 .] Mr. Kapoor denied ever touching the Complainant. He said he did not touch her legs, breasts, or abdomen. He firmly testified that he did not touch the Complainant intentionally or accidentally. However, he later said that he might have touched her with his tool belt or box by accident given the small confines of the bathroom. [ 32 .] He said that did not find Ms. P. attractive, but agreed that she looked good in short clothes. In his evidence, the following took place: Q: Okay.

I am going to suggest to you the fact that she was wearing small workout clothes led you to believe that perhaps you could get a free feel and that no one would believe her if she told someone? A: Yes. [ 33 .] Shortly afterward, the following exchange was made: Q: Okay. And the fact that Ms. P. was wearing these workout clothes led you to believe that maybe it might be okay to touch her, right? A: No. 3.0: POSITIONS OF THE PARTIES 3.1: Crown [ 34 .] The Crown submits that this case comes down to an assessment of the credibility of the two central witnesses: the Accused and the Complainant.

The Crown submits that Ms. P. was a credible and trustworthy witness, and that Mr. Kapoor was not. The Crown submits that the Complainant’s brother gave evidence that confirmed the Complainant’s testimony and fatally undermined the Accused’s credibility. 3.2: Defence [ 35 .] The Defence submits that Mr. Kapoor’s evidence was entirely believable and, whether believed or not, creates a reasonable doubt as to his guilt. [ 36 .] The Defence further submits that the Complainant’s evidence made little sense. It was submitted that her evidence that (

a) she continued to speak with the Accused despite having her thigh grabbed and (

b) that her midriff was touched while the landlord was in the vicinity defied any common sense. Counsel submitted that it was incredible believe that an obviously strong willed young woman such as Ms. P. would continue to interact with the Accused in the face of such behaviour. He also submitted that for her evidence to be believable, one would have to find that Mr. Kapoor acted in a highly risky and brazen fashion, which, he says, makes little or no sense either. [ 37 .] The defence submits that the Complainant was upset to see the Accused who was an unexpected intruder who wouldn’t leave when told.

They submit that she then made a false complaint of sexual harassment as a means of getting the Accused out of her apartment. The defence also submits that the Complainant exaggerated her evidence by inflating the number of times she said she was touched on the leg from once to thrice. [ 38 .] The defence submits that the Complainant’s brother was not a compelling witness. First, his ability to hear was compromised because he was wearing headphones while listening to music.

Second, it is submitted that his evidence as to what his sister said was different from her evidence on this topic in that he quoted her as yelling, “don’t touch me” whereas she did not testify that she said this. 4.0: THE LAW

[39.] In analyzing this case, I apply the following principles of law as summarized by Mr. Justice C. Hill of the Superior Court inthis region in many similar matters. [40.] The court may believe none, some, or all of a witness' evidence: R. v. R.E.M. (2008), 2008 SCC 51 , 235 C.C.C. (3d)290 (S.C.C.) at ¶ 65; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at ¶ 5; R. v. Abdallah, (ON CA), [1997] O.J. No.2055 (C.A.) at ¶ 4, 5. The trier of fact is entitled to accept parts of a witness's evidence and reject other parts.

Similarly, the trier canaccord different weight to different parts of the evidence that it has accepted: R. v. J.H. (2005), (ON CA), 192 C.C.C.(3d) 480 (Ont. C.A.) at ¶ 44. [41.] The vast majority of sexual assault prosecutions turn on the evidence of the two principals - the complainant and the accused:R. v. S.C.M., [1997] O.J. No. 1624 (C.A.) at ¶ 3. However, a verdict of guilty may, in appropriate cases, be safely founded on theevidence of a single witness, regardless of the offence or offences charged: R. v. A.G.(2000), 2000 SCC 17 , 143 C.C.C. (3d) 46(S.C.C.); Vetrovec v.

The Queen (1982), (SCC), 67 C.C.C. (2d) 1 (S.C.C.). [42.] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Suchan approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonabledoubt: W.(D.) v. The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at 409; Avetsyan v. The Queen (2000), 2000SCC 56 , 149 C.C.C. (3d) 77 (S.C.C.) at 85-87; R. v. Chittick, 2004 NSCA 135 , [2004] N.S.J.

No. 432 (C.A.) at ¶ 23-25. [43.] Mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.) v. The Queen,supra at 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to afinding of guilt constitutes a serious error: R. v. Dore, (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.) at 527; R.v. S.H., [2001] O.J. No. 118 (C.A.) at ¶ 4-6. W. (D.) explains that the court must not reach its verdict based on choosing between thedefence and prosecution evidence.

Instead, it is whether on the basis of the evidence as a whole, the trier of fact has no reasonable doubtas to the guilt of the accused: R. v. C.L.Y. (2008), 2008 SCC 2 , 227 C.C.C. (3d) 129 (S.C.C.); R. v. Austin (2006), (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.) at ¶ 19 – 24. [44.] The obligation of the trier of fact created by the W.(D.) standard was summarized in R. v. Minuskin (2004), (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550: It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula.

This suggestedinstruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise formof words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at theaccused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the endof the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction.

One of those principles is that it isnot necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of factbelieves the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J.in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonabledoubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole." See also R. v.

Turmel (2004), 2004 BCCA 555 , 197 C.C.C. (3d) 425 (B.C. C.A.) at ¶ 9-17; R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at ¶ 23; R. v. J.H.S. (2008), 2008 SCC 30 , 231 C.C.C. (3d) 302 (S.C.C.); R. v. R.E.M.(2008), 2008 SCC 51 , 235 C.C.C. (3d) 290 (S.C.C.) at ¶ 67; R. v. Wadforth (2009), 2009 ONCA 716 , 247 C.C.C. (3d)466 (Ont. C.A.); and R. v. R.H., [2010] S.J. No. 199 (C.A.) at ¶ 67 – 68. [45.] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of twoconflicting witnesses: R. v.

Selles (1997), (ON CA), 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. Mina, [1994] O.J. No.1715 (C.A.) (affirmed (SCC), [1995] 2 S.C.R. 415). In approaching the issue of credibility, the trier of fact in not onlyentitled to compare the evidence of the accused to the complainant, but has a positive duty to assess the evidence of the accused in lightof the whole of the evidence, including the testimony of the complainant: R. v. Hull, (ON CA), [2006] O.J. No.3177 (C.A.); R. v. Boffo, [1997] O.J.

No. 5156 (C.A.) at ¶ 12. [46.] Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom,belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing

witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision inlanguage used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting toreconcile their renditions of critical events: R. v.

Wadforth, supra at ¶ 66. [47.] An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt ofthe truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on aproblem identified with the way the accused testified or the substance of the accused's evidence: R. v. J.J.R.D .(2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) (leave to appeal dismissed [2007] S.C.C.A. No. 69) at ¶ 53. See also, R. v. R.E.M.,supra, at ¶ 66; R. v. C.F., 2010 ONCA 424 , [2010] O.J.

No. 2499 (C.A.) at ¶ 9; and R. v. J.A., 2010 ONCA 491 ,[2010] O.J. No. 2902 (C.A.) at ¶ 19 to 23. In a "she said/he said" case, the trier of fact may reject the evidence of an accused and convictsolely on the basis of accepting the evidence of the complainant, provided that the court also gives the evidence of the defendant a fairassessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence: R.v. Jaura, [2006] O.J. No. 4157 (O.C.J.); Law Society of Upper Canada v.

Neinstein (2010), 2010 ONCA 193 , 99 O.R. (3d) 1(C.A.) at ¶ 77. [48.] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered againstconflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established: R. v.Stewart (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at ¶ 8, 9; R. v.Norman (1993), (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4. [49.] Demeanour evidence, while relevant, alone cannot suffice to found a finding of guilt: R. v.

K.A. (1999), (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.); R. v. W.S. (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v.Gostick (1999), (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), R. v. J.A., 2010 ONCA 491 , [2010] O.J. No.2902 (C.A.). [50.] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, suchevidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however,be capable of restoring the trier's faith in the complainant's account: Kehler v.

The Queen (2004), 2004 SCC 11 , 181 C.C.C.(3d) 1 (S.C.C.) at 5-6; R. v. Betker (1997), (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 (leave to appeal refused[1998] 1 S.C.R. vi); R. v. Michaud (1996), (SCC), 107 C.C.C. (3d) 193 (S.C.C.). [51.] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering his or her credibility, otherwise itcould have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), (ON CA), 35 C.R. (4th) 340 (Ont. C.A.) at¶ 3. [52.] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v.

K.G.B.(1993), (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at ¶ 2-8; R. v. M.W.M.,[1998] O.J. No. 4847 (C.A.) at ¶3; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at ¶ 4, 5. The trier of fact must remain vigilant to the factthat the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the partof a principal Crown witness: R. v. Batte (2000), (ON CA), 49 O.R. (3d) 321 (C.A.). Evidence of a witness' motiveto lie is relevant as well to the accused as witness: R. v. Murray (1997), (ON CA), 115 C.C.C. (3d) 225 (Ont.

C.A.) atpara. 11-14. 5.0: ANALYSIS [53.] Mr. Kapoor was a poor witness. He testified in a manner that was frequently confusing and difficult to follow. He oftenspoke in English despite the presence of a Punjabi interpreter who was there at his request. His evidence regarding the events in issuewas unbelievable and did not raise a reasonable doubt in my mind.

The limits of my credulity concerning his evidence exceeded thebreaking point due to some significant problems with his testimony. [54.] The Accused said that immediately upon encountering the Complainant, she was screaming for him to leave and that heunderstood that she wanted him out. He testified that he was uncomfortable and did not want to work there unless someone else waspresent. Yet he (

a) did not leave when she told him to, (

b) did not go upstairs to retrieve the landlord, and (

c) continued to work whenthe landlord turned to leave.

[55.] Mr. Kapoor said that for 1-2 minutes he was standing within 3’ of the Complainant while she exercised yet on his evidence she didn’t notice him. I do not believe that some who is within arm’s length of another person in such circumstances would fail to see him. [56.] The Accused made a number of material internal inconsistencies. For example, he first said that he saw her exercising then later said he did not. Also, in cross-examination he agreed that he took the chance to touch her and then disagreed when asked this same question a second time. [57.] Mr.

Kapoor also gave other evidence that I found was inconsistent with external testimony. For example, he said that from the bathroom he was able to see both the Complainant and her brother. Given the evidence of the Pereras and the diagram of the apartment, it would have been impossible to see into the living room from the inside the bathroom. Also, the Accused said that when his presence was first detected, both occupants yelled at him.

This was never put to either prosecution witness nor did either of them testify to that effect. [58.] The Accused professed to know too little English to find out why the Complainant was telling him to leave. Yet many times during his evidence he began answering questions posed in English with English despite having the benefit of a Punjabi interpreter. At one point in the trial I enquired whether he even needed an interpreter. Clearly the Accused understands far more English than he lets on. [59.] I do not believe Mr. Kapoor nor does his evidence leave me with any reasonable doubts.

Having rejected the Accused’s testimony, I can only find him guilty if I am satisfied the remaining evidence does not raise a reasonable doubt. [60.] L.P. was a candid and credible witness. She was tremulous and emotional while recounting the events, as if she was reliving the experience. She was never shaken in cross-examination. To the contrary, she was materially consistent when reiterating what happened. She was, however, excitable to the point where I had to admonish her several times to slow down.

While I found the presentation of her evidence frustrating at times, it did not detract from her credibility or reliability. In my view her story had the ring of truth to it. [61.] I did not find that she inflated or exaggerated her evidence. Both in chief and in cross-examination she said that Mr. Kapoor touched her thigh anywhere from one to three times.

Given the unexpected nature of the touching and her confusion as to whether or not he did that because he was feeble, I am not surprised she did not stand there counting. [62.] I disagree that it made no sense for her to continue interacting with the Accused after he touched her thigh. Despite being taken aback, she initially gave him the benefit of the doubt. She had an interest in finding out what was wrong with the toilet, which he was there to fix. Annoyed as she was by his unannounced presence, it made sense to continue talking to him.

It was only after he cupped her breasts that she fairly concluded that he wasn’t feeble-minded, but was deliberately sexually accosting her. [63.] As for the high risk act of touching her stomach while the landlord was in the area, it must be kept in mind that the Accused was prepared to touch the leg and breasts of a stranger in her own home when he was aware that her brother was there and the landlords were upstairs. In such circumstances, I am not shocked that he would then touch her again, especially after knowing the landlord was not ejecting him despite her protests. [64.] I am well satisfied with Ms.

P.’s explanation for not immediately calling the police. She said that she thought that she could handle it on her own and as she testified, “Usually when somebody touches me, I don’t like it. I tell them to back off and they do. He didn’t.” That is why she enlisted the landlord and not the police. It was her mother’s decision to call the police, not hers. Thus, if she was truly motivated to make a false complaint, she would have called, or have somebody call, the authorities but she did not.

I find that she was not traumatized by the event, but was offended by the unwanted touching which she felt she could handle on her own. [65.] I therefore find Ms. P. to be a credible witness who gave compelling and trustworthy evidence which I accept. [66.] L.P., the Complainant’s brother, was a solid and wholly reliable witness. He was in a position to make reliable observations. Even though he was listening to music, he used only one earpiece and was able to hear what was being yelled a short distance away. He was aware of the presence of both his sister and the Accused.

The cross-examination by way of putting prior consistent statements to

him only served to reinforce his credibility. He and his sister did not discuss the situation. I believe him when he said that he heard his sister yell at the Accused to stop touching her. [67.] I am not troubled by the Complainant not testifying that she yelled at the Accused to stop touching her. She also did not deny having said it. It was her testimony that she was angry at the Accused for touching her and was yelling at him to get out.

Her brother’s evidence that she did say, “Stop touching me” is completely consistent with her evidence and the timing of the situation as she described it. [67.] I agree with defence that the behaviour of Mr. Kapoor as described by the Complainant demonstrates brazen and high-risk conduct. The Accused knew that brother and sister were home and that the landlord was upstairs. However, He also was aware the brother was in his room and thus not immediately present. He had an opportunity to be alone with Ms. P. in the bathroom by showing her what was wrong with the toilet. The risk of detection was diminished by Mr.

Kapoor only touching the Complainant while (

a) they were both in the bathroom, out of sight of anyone else who was in the apartment and (

b) with the landlord’s back turned to them. [68.] While there is evidence that the assault in these circumstances was risky, I disagree that it was implausible. L.P. was occupied listening to music in another room with no view. The landlord was not in the bathroom and had turned to leave. The touching was superficial and brief. The manner of the touching was such that it could be readily stopped and the hand promptly removed. I find that there was a realistic opportunity to commit this crime in the manner described by Ms. P. in all of the circumstances. 6.0: CONCLUSION [69.] Therefore, I disbelieve Mr.

Kapoor, but accept the evidence of Ms. P.. Furthermore, neither Mr. Kapoor’s evidence nor the balance of the remaining evidence raises a reasonable doubt. The evidence of the Complainant’s brother confirms her testimony and eviscerates that of the Accused. On the totality of the evidence, I am satisfied beyond a reasonable doubt that the prosecution has proven that Tajinder Singh Kapoor touched L. P. without her consent on November 28, 2009 for a sexual purpose and I find him guilty of sexual assault. Released: Tuesday, March 1, 2011 _____________________________________ Richard H.K.

Schwarzl, Justice of the Ontario Court of Justice