2021 QCCQ 5150, 2021 QCCQ 5150

R. c. Rezayee 2021 QCCQ 5150 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division N o : 500-01-189807-198 DATE: May 7 2021 ______________________________________________________________________ BY THE HONOURABLE PIERRE E. LABELLE, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutrix v.

Merajuddin REZAYEE Accused ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ OVERVIEW [1] Just past midnight on 12 January 2019, the plaintiff boarded a UBER vehicle, in Montreal, driven by the accused. The plaintiff wanted to go to his boyfriend’s apartment in Laval. He never made it. Just a few minutes after the ride began, there was a sexual encounter between the two in the back seat of the vehicle. [2] For the plaintiff, it was sexual assault, for the accused, it was consensual.

THE EVIDENCE The plaintiff [3] The Crown presented the plaintiff as the sole witness. He stated how he had finished work, in a restaurant, and went home, took a shower and got ready to meet his boyfriend who lives in Laval. [4] In order to get there he ordered a UBER vehicle to pick him up at his residence on Bellechasse Street , near St-Michel . He was comfortable with this type of transportation because he deemed it safe, having made several trips with them in the past. [5] He got into the vehicle after confirming that it was the right one, and, as well the identity of the driver.

He sat directly behind him. [6] The destination was confirmed and the vehicle got on its way. The accused started to put questions to the plaintiff about his residence, his sexual orientation, his boyfriend and if he was faithful. Within a very short distance, the car made a turn into a residential street that was not part of the route. The plaintiff got scared and froze. [7] The car was park, and the accused got out and joined the plaintiff in the back seat.

The accused said something to the effect of : “ It’s okay, we will never see each other again [2] ”, and also “ can you make some room ? [3] ”. [8] At that point, the accused slid his hand into the pants of the plaintiff, pulled his penis out and masturbated him for a short time, he did not have an erection.

The latter asked “ Why me ? [4] ” The reply was “ I find you sexy [5] ”. [9] At this point, the accused proceeded to undress the lower half of his body, and with his right hand he guided the head of the plaintiff towards his penis with sufficient strength to force it into the mouth of the plaintiff. [10] During the assault, he changed hands to keep pressure on the head of the plaintiff and, with his right hand he inserted a finger into the plaintiff’s anus.

This hurt him and he tried to push the hand away with mitigated success. [11] The accused ejaculated in the mouth of the plaintiff who was obligated to swallow because there was still pressure on his head, [12] As soon as it was finished, the clothing was put back on, the accused took his place in the driver’s seat and started driving toward Laval. The plaintiff contacted a friend by text message and described what had happened and that he felt violated. [6] . [13] The plaintiff noticed what looked like a police station on St-Hubert Street near Crémazie , and told the driver that he wanted to get out of the car.

He appeared to be surprised by the request and he said, again, “What is nice, is that we will never see each other again [7] ”. [14] What the plaintiff believed to be a police station was closed.

He met with investigators the next day and filed a complaint for sexual assault. [15] During his testimony, he gave a description of the driver, filed several documents from his UBER account regarding the ride, the identity of the driver and the model of the car and finally he identified the accused as his aggressor. [16] The cross-examination revealed the following. [17] While familiar with the UBER application, he did not know at the time, how to end an ongoing ride. [18] He is able to remember the conversations he had with the accused, but not word for word. [19] He admits some differences between his testimony and his prior statement to the police.

These differences relate to what questions were put to him by the accused when he got in the car and whether the answers were linked directly to questions asked or if the plaintiff volunteered information on his own. Here is the information regarding the existence of a boyfriend comes to mind. On this specific topic, the plaintiff is uncertain. [20] He felt somewhat threatened at the start of the ride, because the driver asked if he lived at that address. [21] He did not compliment the accused on his looks when he got into the vehicle and he did not make advances to him.

He affirms that in a relationship he is faithful and would not cross that line. For him, this is a core value. [22] He acknowledges that he would have the opportunity to exit the car on a few occasions before the assault, considering that he was only a stone’s throw away from his residence.

He did not order the accused to stop with the questions, in part because he started to feel insecure and he did not wish to offend anyone, but he felt that the situation was bizarre, and he mentioned it. [23] He did not propose any sexual activity or encounter to the driver in the short period of time between the start of the ride and the actual assault.

And considering all of the above, he did not put an end to the ride, because he could not imagine what was about to happen, all he wanted was to get to his boyfriend’s apartment in Laval. [24] According to the plaintiff, the accused did not announce the detour he was about to make, but he acknowledges that he did when confronted with his prior statement. It is at that moment that he froze and did not react. [25] When the accused came to the back seat, the plaintiff did not react in part because he could not imagine that anything would happen.

He moved to let the accused sit beside him, mostly out of fear, he never invited him to sit. The words spoken by the accused, that they would never see each other again, are not included in the statement given to the police.

[26] As to what took place in the back seat, he confirms that he gave different versions of the time frame of the masturbation sequence in the statement given to the police. At one point he stated that it lasted about a minute, after it was 30 seconds and finally a few seconds. [27] He refuses the propositions that he lowered the accused pants and masturbated him.

He explains how the accused forced his head with a hand towards his penis and how the pressure exerted both on his head and with the penis on his mouth, he was forced to open it and perform fellatio. [28] Here again, there are discrepancies regarding the time frame of this specific event. These are also found between the testimony and the information given to the investigators. The accused did not let go of the pressure on his head, therefore, the plaintiff was not able to remove it when the former started to ejaculate.

Since he could not spit, because of the presence of the penis in his mouth, he had to swallow the ejaculate, or else, he would have gaged. He admits that in his statement he said that some of the sperm did drip from his chin. [29] He denies that this was a consensual act. The accused [30] The accused testified for his defence. He was indeed a UBER driver in January 2019, and had that job for a few weeks only. He picked up the plaintiff and confirmed his identity, and the destination in Laval.

He was complimented on his looks included in his profile, by the plaintiff. [31] Because of the compliment, he sensed that the plaintiff was friendly, amicable and that he was trying to be pleasant with him, and he said thank you. [32] He then asked the plaintiff if he was a homosexual, to which he responded yes. He asked this personal question, even if it is against the rules set out by UBER, because he found him sexy. He believed that these words meant that the plaintiff was making advances towards him. [33] The accused even found the voice of the plaintiff sexy.

Seeing how there seemed to be mutual attraction, the accused proposed an encounter of a sexual nature, to which the plaintiff agreed, mentioning that it would only include fellatio. [34] He describes the atmosphere in the car as being amorous or loving and that he had feelings towards the plaintiff. The latter said ‘ Are you just driving ?’, ‘ Do you want to do more than talk? ’, ‘ Do you want to stop somewhere? ’ [35] The accused had already diverted the car right after turning on St-Michel, he found a residential street where to stop the vehicle.

He surmised that the words spoken by the plaintiff were a proposition for him to join his passenger in the back seat. And once the car was parked, this is where he ended up. [36] The plaintiff appeared relaxed and did not contest his presence in the back seat. Once there, the plaintiff turned, facing him, according to the accused, they were both ready.

The former immediately reached for the pants of the latter, unbuttoned it and was caressing his penis. [37] There was a romantic feeling and the plaintiff was very sexy and asked ‘ why me ? [8] ’, he answered ‘ What do you mean ?’ He did not want to break the atmosphere in the car by talking. The plaintiff then proceeded to perform fellatio on him, during which he placed his right hand on the plaintiff’s back near the buttocks, with his left hand, he kept his coat out of the way by raising it. Everything that took place was consented to.

Because the plaintiff had control of his penis, he had no choice but to ejaculate in his mouth. He does not know if the plaintiff swallowed, but he did not witness him spitting. [38] Afterwards, he arranged his clothes, the plaintiff gave him an amorous look. The accused thanked him, he was thanked in return. During the encounter the plaintiff was calm, friendly, amicable and he had an amorous look throughout. [39] At no point during the encounter did he force the plaintiff, touch his penis, or put a finger in his anus, nor did he force the head of the plaintiff with one or both of his hands.

While not able to put a time frame on this specific part of the encounter, saying that it was a very romantic and loving atmosphere, he estimates it at around ten minutes.

He will say however, that during the fellatio, he did put his right hand on top of the plaintiff buttocks, over his clothing, and he caressed them. [40] He adds that everything was based on consent. [41] He says that he ejaculated, seeing how the plaintiff had control on his penis, and he states that both of them took pleasure from the moment. [42] Once he restarted the car he made his way to the planned destination in Laval, but at a certain point, the plaintiff said he wanted to get out of the car, and he did not object to his request.

He did not fell this as being abnormal, because everything that happened was the result of consent and accord. APPLICABLE PRINCIPLES [43] Throughout a criminal trial, it is the burden of the Crown to demonstrate the guilt of an accused, beyond a reasonable doubt. This burden never shifts to the accused, he does not have to demonstrate anything. [44] The reasoning underlying the verdict must find its foundation on the evidence lead at trial, and must never be based on

impressions, hypothesis, conjunctures or speculations. One must not choose a version that seems more plausible or believable. It is also true that a version may not be preferred because it is more likeable. [45] The testimonies offered during a trial are analysed thru the prisms of credibility and reliability. Credibility refers to the way a witness testifies. Is the person truthful, honest, sincere or dishonest, trying to hide facts or plainly lying. [46] Reliability goes to the heart of the testimony, to the facts.

Is it trustworthy, can it be relied upon? [47] A witness who is deemed credible is not necessarily reliable, because, while he truly believes the fact he testifies about, it is possible that he is mistaken. [48] During the evaluation of the testimonies, they can be rejected in totality, or in part or accepted as a whole. [49] Finally, even when a witness is deemed credible and reliable, this does not necessarily bring about a verdict of guilt.

It is on the whole of the evidence that such a verdict must be based. [50] Further, when the evidence shows that contradictory evidence exists on one or numerous elements of an accusation, these contradictions, if they are important, must be analysed in a specific framework. This permits a Court to determine, in three steps, if the Crown did in fact meet its burden [9] . [51] This framework requires to start the analysis with the testimony of the accused, if it is believed, then he must be acquitted.

If not, we then move to the second stage, and decide if the evidence presented by the defence raises a reasonable doubt. Here again, if the answer is no, we moved to the third step of the test and decide if the evidence demonstrate the guilt beyond a reasonable doubt. ANALYSIS The first step [52] The accused crossed several and important rules set out by his then employer, rules that concern the client’s safety and right to privacy. He asked questions regarding the home address of the plaintiff, his sexual orientation, if he was willing to engage in a sexual act.

All of this within the first minute of the complainant entering the car. These questions, and how they contravened the working rules of UBER, do affect the credibility of the accused. [53] The testimony of the accused was permeated with several adjectives that conveyed a romantic and loving atmosphere in the car, almost to the second the plaintiff entered the vehicle. Now, while it may be that people flirt in all sorts of manners, and that sexual encounters may result, I cannot accept the testimony of the accused on this point.

I do not believe that within a matter of seconds, there was a loving and romantic feeling permeating the vehicle. [54] The insistence of the accused in trying to justify, the way he did, that it was a caring, loving and romantic atmosphere in the car affects his credibility. [55] The insistence of the accused in saying that all along the encounter in the back seat that it was consensual, that the plaintiff did not object is also a problem. He testified earlier that the plaintiff proposed a fellatio. Why then justify that it was consensual?

It does not make sense. [56] The fact that he did not seem to care that the plaintiff did not want to continue to the predetermine destination, also affects the credibility of the accused. If there was such a romantic and loving atmosphere during the encounter, why just say, “it’s okay, we will never see each other again’ and leave. This also affects the credibility of the accused. Further, the claim of the accused to the effect that by answering his very personal questions, the complainant was coming on to him, must be rejected.

It defies understanding. [57] As a whole, I reject the accused testimony that the sexual encounter was consensual. The second step [58] As said earlier, the accused transgressed rules of his then employer, regarding improper communications with a client and more importantly engaged in a sexual relation with that client. The credibility of the accused is affected. [59] He believes that the plaintiff was coming on to him, and he proposed a sexual encounter. To him the plaintiff was sexy and had a sexy voice.

And because he answered questions, this was mistaken as a ‘come on’ by the latter. [60] Before going on, I must comment on the plaintiff. I say this with the greatest respect, he is a person of very small and delicate stature. He appeared to the Court as someone who would have difficulty to assert and defend himself. He appeared to be introverted, to a point of being almost resigned. His personality, as I saw it during his testimony, does not support the affirmation that he would have offered himself, in the manner described by the accused.

This conclusion is supported by the statement made by the complainant that when he realised what might happen, he got scared, and froze. [61] Here I should say that the statement made by the plaintiff that he is a faithful person does not form part of my comment. [62] Considering all of the above, the defense does not raise a reasonable doubt. The third step [63] I must now determine if the evidence demonstrate the guilt of the accused, beyond a reasonable doubt. [64] The testimony of the complainant is at the heart of the analysis.

I would like to repeat that his affirmation that he is faithful when in a relationship is not part and parcel of the exercise I undertake. This is so because, it is impossible to verify the validity of the statement, without going into his past sexual conduct. [65] The complainant said that as soon as he entered the car, he was questioned by the accused. This made him feel uneasy.

When the car made an unannounced turn, he started to get scared, he could not imagine what was about to happen, when he realised that the car stopped, he froze. [66] I repeat here what I mentioned earlier about the physical attributes of the complainant. Considering this, it is not surprising that he froze. As was mentioned by the accused counsel during trial, there is no normal way for people to flirt, and may I add, there is no normal way for a complainant to react. [67] The versions given by the plaintiff at trial, differ somewhat from the statement given to the police.

These discrepancies go to the time frame of the events, as whether or not certain words were said, also on the topic of whether or not he volunteered information to the driver or if he was answering questions put to him. [68] As a whole, the testimony of the complainant was not shaken on the events that took place in the back seat of the vehicle. Even when cross-examined on the particulars of all phases of the fellatio, the testimony did not waiver or changed.

The only detail that was different at trial relates to sperm dripping down his chin. [69] There is no reason to reject parts of the testimony, nor the whole of it. [70] I conclude that there was no consent given by the plaintiff. It was a sexual assault. [71] The evidence therefore demonstrates that the charge as been made out, the guilt of the accused has been proven beyond a reasonable doubt. CONCLUSION [72] The accused, Merajuddin Rezayee, is declared guilty of the sole count of the information. __________________________________ Pierre E. Labelle, J.C.Q.

Me Bruno Ménard On behalf of the Prosecutrix, Her Majesty the Queen. Me Zalman Haouzi Me Alexandre Bien-Aimé On behalf of the accused Dates of hearing: January 14th and 15th 2021.

[1] These are the written reasons of the judgement read on 7 May 2021. Clerical errors have been corrected. JL 3975 [2] The witness testified in French and said : « C’est pas grave, on va jamais se revoir ». [3] Idem, « Tu me fais de la place? ». [4] Idem, « Pourquoi moi? ». [5] Idem, « Parce qu’il me trouve sexy ». [6] Idem, « Je me suis senti agressé ». [7] Idem, « Ce qui est bien, on va jamais se revoir ». [8] Idem, ‘Dis-moi pourquoi moi?’. [9] R. v. W. (D), (SCC), [1991] 1 SCR 742