Her Majesty the Queen - v. -, 2018 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 68 Date: November 20, 2018 Information: 90019427 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gurdit Mashiana Appearing: Ms. T. Rock For the Crown Mr. M. Scott and Mr. M. Chaudhery For the Accused JUDGMENT C. SNELL, J INTRODUCTION The accused’s trial on a charge of having sexually assaulted the complainant, (Ms. H.) on September 17, 2016 began on November 8, 2017 but was not completed until October 15, 2018.

In this case the only direct evidence regarding the alleged offence is that of Ms. H. and the accused. For the reasons which follow, I have concluded that the accused should be found guilty of the offence as charged. I will review the evidence presented in this case, comprised of the testimony of the complainant, the testimony of the complainant’s boyfriend at the time of the incident, the testimony of the accused, and the statement given by the accused to the police. I note that the accused had the assistance of an interpreter to translate evidence given in English to

Punjabi, and his evidence given in Punjabi, to English. REVIEW OF THE EVIDENCE Ms. H. is a 36 year old woman who suffers from epilepsy, as a result of which she is unable to drive or consume alcohol. She routinely takes taxicabs in the City of Regina, her preference being Co-op Taxi as she believes this to be a business which contributes to the province. On September 17, 2016 she attended a symphony performance at the Conexus Centre. Once the performance had concluded, she exited the building and entered the front passenger seat of the first vehicle in the line of taxicabs waiting outside.

She explained that she often sits in the front passenger seat and that cab drivers in Regina frequently open the front door for passengers, although she did not say that the driver had done so on this occasion. Ms. H. gave the driver her home address on Grant Drive. However, en route the driver missed two turns which, if they had been taken, would have allowed them to reach the address in eight or nine minutes. Due to the missed turns, the trip took several minutes longer than usual.

The complainant was not sure if the driver misunderstood her directions, or if it was intentional, but she noticed that the questions the driver asked her became more personal after they missed the first turn. In her direct examination she stated that she did not know how much longer the trip took than it should have, but she did say that the fare would normally have been about $9.00 and on this occasion it was closer to $20.00. Ms. H. testified that the driver asked her a number of personal questions throughout the trip.

She said that at first the questions seemed harmless or polite, and she had no objection to talking to the driver, who had clear difficulties with speaking English. She said she appreciated the value of conversation to those who are learning a language, having had exposure to international students at the University of Regina. Ms. H. did not recall all the questions that the driver asked her, but she indicated he asked for her phone number, if she was married, if she had children and where she worked.

She stated that she gave answers to all the questions, but did not give accurate information which would allow him to identify or trace her. She said she answered all questions to avoid a confrontation which might be caused by a refusal to answer. In direct examination she said she was asked if she used Facebook and that she lied and told the driver she did not use it. Ms. H. testified that once they arrived at her home the driver drove onto her driveway and parked in front of her house, which was completely dark.

At that point, she said, he asked her for a date the next night, to which she responded by saying that she was busy, but that maybe they could talk another time. He asked again, and she thought he also asked if he could come inside right then but she wasn’t sure what he had said because of his accent. She described his language skills as being at an early stage of development. She stated that when he asked if he could come in he put his hand in her lap - she described this as being on the upper thigh and very personal.

In her direct examination she said that at that point she offered a compromise - she said “no, but how about if I give you a kiss?” When she gave this evidence she was clearly embarrassed that she had done this, and said that she did not really know why she made that suggestion. She said what she meant by her offer was an air kiss in the French custom, and that she turned towards him. She testified that when she turned in his direction, his elbow came down hard on top of her knee and that his hand pressed right up to her vagina through her dress 1 .

She further described it as the hand touching “where her vagina is under her clothing 2 . She said that he then reached across with his other arm and put his hand inside her dress, cupping her breast with the palm of his hand 3 . Ms. H. said she immediately pulled back and got out of the car in a panic. She only had taken a step or two when she heard him yelling that she hadn’t paid. She quickly grabbed whatever cash she had in her purse - she

wasn’t sure if it was one twenty, or two - and threw it on the front passenger seat through the open window. Ms. H. testified that she was traumatized by this event. She said she raced to the back door of her house which had a keypad allowing for a quick entry, in case the driver chased her inside. She said she lost one of her shoes on the driveway as she ran into the house. She said that once she was inside she remained by the back door for possibly 20 minutes before she made her way in the still dark house to the front room where she could check if the driver had left. The taxi was gone by this time. Ms.

H. stated that she was very concerned that the driver should not continue in a position where he could do to someone else what he did to her. She telephoned the cab company and complained about the driver. Although she did not get a satisfactory response initially, after her then-partner Roger also complained to Co-op Taxi, she spoke to a manager at the taxi company that evening and was later that evening provided with an email from him indicating that the driver had been fired. A copy of the email which had been sent to the driver was also provided to her. Those documents were filed as Exhibit P-3. Ms.

H. did not intend initially to report the incident to the police, but she testified that when she looked at the documents in Exhibit P-3 a few days later she realized that the letter did not explain the reason for the firing, a fact she did not immediately notice when she received the email. She feared this would allow the driver to be hired by another cab company. As a result, on the following Thursday, the event having occurred on a Saturday, she went to the police station and gave a statement 4 .

Photographs, marked Exhibit P-2, were taken of a bruise to her knee which she said was caused by the accused’s elbow. Ms. H. was not able to identify the accused in court. Cross-examination revealed some inconsistencies in her evidence. In direct examination Ms. H. said that the driver had asked if she had a husband. However, counsel suggested in cross-examination that before the accused asked for the date the next night he had asked if she had a partner. Ms. H. responded that she didn’t recall that.

When it was put to her that she said in her statement to the police that she had told him that she lived with her partner, she said that she must have said that to the driver if she wrote it in her statement. When confronted with the fact that in her statement she said that he asked about being a Facebook friend and that she had said she did have Facebook, contrary to her direct examination, she testified that the statement might be right and that it was her bad memory which led her to say in direct examination that she had said she didn’t have Facebook.

She testified she might have agreed that she had Facebook with the intention of giving a false name. In cross-examination she said she did not know what the fare was at the end of the trip, despite the fact that in her direct examination she had stated that it was close to $20.00, which was about twice what it was normally. Ms. H. was asked if she was aware that a neighbour was outside having a cigarette when she got out of the cab, and that the neighbour had said something to her about not paying the driver.

She did not recall noticing the neighbour or hearing anyone saying anything, other than the driver, but she did not suggest that it was not possible that someone had been there. In cross-examination she stated that the driver asked for a kiss after he asked to come into her house, whereas in direct examination she said she offered this as a compromise. Finally, during cross-examination regarding the photograph of the bruise on her knee, Ms.

H. suggested that the photo might not be an accurate representation of the bruise caused by the driver’s elbow, as it seemed to be on the front of the knee, rather than on top of it. Roger Descottes, Ms. H’s boyfriend at the time of the incident, testified that he received a

phone call from Ms. H. about the incident and since it appeared the taxi company did not take her complaint seriously, he called them himself and spoke to the manager who agreed to call Ms. H. back. He testified that he communicated with Ms. H. that night mostly by text but that he had a sense that she was a little bit distraught. He did not see her until after his work shift ended the next morning. He described her condition at that point as being shaken up, very emotional, worried, scared and crying. In cross-examination he agreed that he didn’t leave work to be with her as he had asked Ms.

H. if he should come home and she had said no. At 9:40 p.m. on October 8, 2017, the accused was arrested in his apartment and taken to the police station where he provided a statement to the police after consulting with a Punjabi-speaking Legal Aid lawyer. I ruled that the statement was provided voluntarily. Portions of the statement, which was videotaped, were in Punjabi. Cst. Cheema was called to assist with the interview, since he speaks Punjabi. Those portions of the interview which were in Punjabi were translated and a transcript of the entire interview in English was provided to the Court.

This document was marked Exhibit P-4 on the trial. At the very beginning of his statement to the police the accused said that the passenger was drunk and extremely talkative 5 . He said that the passenger was asking him about his family and that he didn’t want her to talk so much. The accused said in his statement that the passenger asked if he had family here and he said that he replied “yes, his family is here”. He said that she told him that her family is not here and that she was alone and was a teacher. The accused also said that the passenger left and that he said to her “where is money, my money”.

He said there happened to be a boy smoking a cigarette nearby who said to her, “the driver is calling you about the money” 6 . He said she threw the money in and he felt that the complaint she made was because he had insulted her by yelling at her for the money. He said she gave him $20.00. He said at first that the fare was about $19.45 or $19.50, but then said it might have been $16.00, $17.00 or $18.00. The accused, when asked where the complainant sat in the taxi initially said “he thought” she was sitting in the back. He later said he was sure she was in the back and not the front.

He said that he had picked up more than one girl - that he picked up many and “it’s not coming in mind, which girl complained” 7 . This was after, as noted above, he had already admitted knowing which passenger it was when he suggested that the passenger who complained about him was drunk. The police immediately then asked if more than one girl threw money at him and the accused admitted that just one girl had done that. He acknowledged that some passengers sit in the front but that when he tells a passenger where to sit, he would tell them to sit in the back.

In his statement, the accused said that he parked on the street, not the driveway. He said there was a company policy that they were not to park in people’s driveways. There was no evidence on that point provided by anyone from the taxi company, nor was the person who was, according to the accused, outside the car when the complainant exited it, called as a witness. The police told the accused that they had the video from the taxi. This was a lie since by the time the complainant went to the police station the video was no longer available.

The police understood that it had been erased or recorded over after three days had passed. 8 The accused said that the video would show he was telling the truth. He also agreed to take a polygraph when asked to do so by the police, but that test was not administered. The police wanted to see what the accused’s response would be. When asked about being fired the accused said in his statement that the company policy was to fire someone if there was a complaint and that he didn’t know if they looked at the video before they did that. The accused testified.

His evidence in direct examination was fairly consistent with what he had told the police in his statement. He said that quite a few customers sit in the front seat but that he didn’t know if this particular one sat in the front or the back. He said he had never asked a customer to be on Facebook with him, and had never asked a customer if he could go into their house. He confirmed that he parked on the road, not on the driveway, stating that this was company policy. He testified that the fare was $13.00 or $14.00 and that he told her he was giving her change - that he offered it, but she didn’t take it.

The accused testified that when he was called into the taxi office that evening he told them to look at the video but that the manager told him that he couldn’t do that - that the police have the software to do that and they could check 9 . I note that the accused did not tell the police about this conversation in his statement to them. The accused testified he told the manager to tell the police about the software issue and he said he told his manager that he should confirm everything before firing him, but that the manager said the girl’s boyfriend was putting pressure on him and he had no other choice.

In cross-examination the accused maintained his position that the complainant was drunk. He continued to say he thought she sat in the back of the vehicle, and he insisted that nothing had happened which could have upset the complainant except to suggest that she may have been insulted when he asked for his fare after she left the taxi and walked away without paying. THE LAW Appellate courts have provided guidance in many decisions about the proper way to approach the evidence in a case where there is essentially only the evidence of the complainant and the accused to consider.

The Supreme Court of Canada’s seminal decision in R v W.(D.) 1 0 was exactly that kind of case, also involving a charge of sexual assault. What must be avoided is any approach which suggests the trier of fact must determine which version to believe. This is an error because it has the potential to invite the trier of fact to consider the accused has a burden of proof, rather than making it clear that the Crown always has the burden to prove the accused’s guilt, beyond a reasonable doubt.

In W.(D.) Cory, J. initially stated the test in the form of two questions, at page 409 of the CCC (3d) report: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. [35] Following that quotation, Cory, J. then expanded the two questions into the three which he described as the ideal instruction, and which has since been treated as the ratio of the case: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [36] The Saskatchewan Court of Appeal, in its decision in R v M.(P.N.) 1 1 cited an unreported

decision, R v Rose by the British Columbia Court of Appeal on November 12, 1992, indicating that a fourth question should be added, although numbered as the second question, as follows: Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [37] Another decision which is of assistance is R v S.E.M. 1 2 In that decision, Baynton, J. pointed out that it is necessary for a trier of fact in these cases to step back and consider all the circumstances of the case and the evidence as a whole and ask if she/he is left with a reasonable doubt as to the guilt of the accused 1 3 .

He cautioned in his decision that although corroboration is no longer a legal requirement in sexual assault cases, that proof beyond a reasonable doubt is more convincing in cases where the evidence of the complainant is supported in some material particular by other independent evidence. 1 4 He summarized the relevant factors to consider as follows 1 5 : In general terms, in a case where there is no evidence that supports the complainant’s evidence, where the complainant’s evidence differs considerably from the evidence of other witnesses, where the complainant may have a motive to exaggerate or fabricate his or her evidence, or where the complainant’s conduct is inconsistent with his or her evidence, proof of guilt beyond a reasonable doubt is not as evident as if none of these factors apply.

In such cases, even where the court is inclined to believe the evidence of the complainant over that of the accused or other witnesses, the court must be particularly diligent in considering whether, on the basis of all the evidence or the lack of it, the guilt of the accused has been proven beyond a reasonable doubt . . .

APPLICATION OF THE LAW TO THE EVIDENCE [38] Except for brief exchanges during the complainant’s cross-examination when she became a bit argumentative with defence counsel about questions she felt were irrelevant to whether she had been sexually assaulted, a not uncommon response from witnesses, there are no negative aspects to Ms. H.’s evidence. She was very careful when giving her evidence not to state firmly as a fact anything about which she was the least bit unsure. When confronted with the fact that she had said something differently in her earlier statement she was never defensive or angry.

She simply agreed that her memory would have been better when she gave the statement. [39] There are details in the complainant’s evidence which are unlikely to be found in a fabricated account, such as her evidence that she looked in the passenger side mirror when the driver’s questions made her uncomfortable and that she lost a shoe running from the car to the house. [40] The inconsistencies in the complainant’s evidence, outlined earlier in this decision, must be considered carefully, to assess how these impact on the credibility and reliability of the evidence given by the witness.

In my view, none of the inconsistencies were significant and were explained satisfactorily. They do not cause me to have a concern either about Ms. H.’s credibility or her reliability. They were about peripheral matters and it is expected that witnesses will testify slightly differently about such matters. In fact, one might be suspicious if evidence is given exactly the same on different occasions. [41] Of great significance, in my view, is that although there was only one person sitting in the body of the courtroom during the trial who could have been the accused, Ms.

H., when asked if she could identify the driver, said that she could not point him out. She said that she did not want to be unfair to anyone and because she was mainly looking away from the driver after she became uncomfortable with his questions, she did not recall much about his appearance. This aspect of her evidence is important to her credibility in two respects. First, it demonstrates her strong commitment when testifying to be fair and to avoid saying anything that went beyond what she knew and believed to be true.

Secondly, it negates any suggestion that her complaint arises from any malice towards the accused. [42] Defence counsel suggested that it was odd and perhaps inconsistent for the complainant to have testified that she was traumatized by the events, if it was not so serious that she would ask her boyfriend to come home to be with her. I do not think this evidence leads to an inference that the complainant was inconsistent. The complainant did tell her boyfriend about the event and obtained his assistance in ensuring the taxi company took her complaint seriously.

The fact she did not ask him to leave work as well does not signify to me that she was not as upset as she recounted and Mr. Descottes’ evidence about her condition when he saw her the next day supports her evidence that she was very upset by the incident.

[43] Defence counsel also argued, while noting the rule concerning recent complaint had been abrogated, that it was relevant, and damaging to the complainant’s credibility that she delayed complaining to the police for several days. In my view, the explanation for the delay provided by the complainant was reasonable. It is easy to understand that one might not notice that the letter firing the driver did not mention why he was fired, when her concern was focussed on the fact that she felt he should be fired.

It also suggests a lack of vindictiveness that she was not initially inclined to report it to the police, so long as she was assured the driver would no longer be able to commit a similar offence. [44] In light of the complainant’s uncertainty regarding the bruise shown in the photograph, in Exhibit P-2, as mentioned in paragraph 19 above, I am not considering that evidence in my assessment of the complainant’s credibility and reliability. [45] On the other hand, the accused’s evidence, although consistent in denying any wrongdoing throughout was lacking in detail and evasive.

As noted earlier, his statement to the police began with an assertion that the person who made the complaint was drunk. I am confident that the complainant was not drunk and from her testimony and appearance in Court I am also confident that her epilepsy does not lead her to slur her words, stumble or appear drunk such that it would be possible for the accused to have been honestly mistaken about her condition.

I believe it was invented as an immediate attempt to discredit the person who made a complaint against him. [46] I noted that the accused prevaricated at times saying that he did not recall which passenger the police were talking about, when clearly he did, and would be expected to do, since the passenger threw money at him and resulted in him being fired 1 6 . His attempts, in his statement to the police, to suggest he didn’t know which passenger had complained about him simply could not be true and this impacts adversely on his credibility.

Similarly, his professed inability to remember if the passenger who threw the money at him sat in the front or back of his vehicle is also unbelievable. [47] Although the accused said many times that the passenger was talking too much and he didn’t want to talk to her, the complainant’s evidence that the questions the driver was asking made her uncomfortable and that as a result she turned away from him and looked in the mirror has a ring of truth to it, as noted above. [48] There are two aspects of the accused’s evidence which could be viewed as supporting his credibility, and therefore these also must be considered carefully.

When lied to by the police that they had the video, he maintained his position that they should view it - that it would show them that nothing happened. He also agreed to their request that he take a polygraph test 1 7 . I have given these two statements very serious consideration because in all other respects I find the accused’s testimony unbelievable. It is necessary to consider, in accordance with the decisions cited above, whether looking at the evidence as a whole, these aspects raise a reasonable doubt. [49] With respect to the video, I note that there is no evidence before me that one ever existed. Cst.

Filazek testified that he had been told by Co-op Taxi that the video had been erased, but this appears to have been a statement about the usual practice, and is hearsay in any event 1 8 . The fact the accused testified that the taxi company manager told him that they could not view the video, and that only the police could view it, is not believable. As well, the accused did not say this to the police in his statement, which is a significant inconsistency and damaging to his credibility.

I find that the accused’s agreement to take the polygraph test is simply evidence that the accused has consistently been determined to deny any wrongdoing. Accordingly, neither of these aspects of the evidence raises a reasonable doubt. [50] In conclusion, there was nothing in the evidence of the complainant, either in its content or

in how she testified, to cause me to disbelieve her, and I do believe her evidence. I do not believe the accused, nor does his evidenceraise a reasonable doubt, and on the basis of the evidence which I accept I am convinced beyond a reasonable doubt of the guilt of theaccused. [51] Accordingly, I find the accused guilty as charged. __________________ C.

Snell, J 1 Transcript - Page 27 2 Transcript - Page 46 3 Transcript, Page 47 4 Transcript, Page 49 5 Statement of the Accused - Exhibit P-4 - Page 5 6 Statement of the Accused - Exhibit P-4 - Page 6 7 Statement of the Accused - Exhibit P-4 - Page 9 8 Transcript, Page 188 9 Transcript, Page 231 10 (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [W.(D.)] 11 (1996), (SK CA), 141 Sask R 221 (CA) 12 2005 SKQB 213, 265 Sask R 193 13 Paragraph 30 14 Paragraph 35 15 Paragraph 37 16 Statement of the Accused - Exhibit P-4 - Pages 9, 10 and 11 17 Translated in the Statement of the Accused, Exhibit P-4, Page 17 as “the lie/truth machine”.

18 Transcript, Page 188