r v. AZIM AHMED, 2021 QCCQ 6596

R. c. Ahmed 2021 QCCQ 6596 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC Criminel and Penal Division No: 500-01-189830-190 DATE: July 8, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. AZIM AHMED Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Azim Ahmed is charged with sexually assaulting P.A.D. on August 13, 2019.

He admits to having had sexual relations with her, but submits that she consented. [ 2 ] P.A.D. acknowledges that she consented to some sexual contact with Mr. Ahmed. However, the Crown’s position is that at a certain point, PAD withdrew her consent, that the accused knew she was not consenting, and that he continued nonetheless. THE EVIDENCE The prosecution [ 3 ] The only witness for the prosecution was the complainant, P.A.D. [ 4 ] P.A.D. met the accused when she was hired to work as a bus girl at the restaurant owned by him and his partner.

She worked at the restaurant for five days in total – Friday April 5 th , and then Monday, Tuesday, Wednesday and Friday of the following week ending on Friday the 12 th . [ 5 ] On Friday, April 12 th , P.A.D. invited the accused to sleep over at her apartment. She went home after her shift - she believes she worked for two hours and thinks she ended her shift at either 7 or 9 PM - and once the accused was done work at about 10:30 PM, he went to her apartment as planned. [ 6 ] When the accused arrived at the apartment he wanted them to kiss but she said no.

He did not insist. [ 7 ] The accused and P.A.D. sat in the living room, talking. P.A.D. was on the phone talking with a friend and the accused was sitting beside her on the couch. Everything was fine. [ 8 ] Eventually P.A.D. said that she was tired and wanted to go to sleep. As planned, the accused joined her in bed. [ 9 ] The accused asked P.A.D. if she had her period and she said no. They started to talk and kiss and the accused put his finger in her vagina.

She testified that “she didn’t say anything because she agreed with that”. [ 10 ] About five minutes after the sexual touching began, the accused was on top of her and they started to have intercourse. She then told him to stop because it was hurting her, that she didn’t feel well and had a stomach ache. The accused stopped, but continued to insist verbally that she was “not allowed to say no” and that he needed to “finish”. P.A.D. replied that in Canada she is allowed to say no at any time. [ 11 ] The accused kept on verbally insisting that she allow him to “finish”.

He was also “bugging her” to change positions and to face him and to chat. But eventually, he stopped talking and she went to sleep. She sensed that he was awake and texting on his cell phone. [ 12 ] About five minutes after she fell asleep, P.A.D. woke up when the accused was spreading her legs with his hands. She felt him penetrate her with his penis. She knew what he was doing but kept her eyes closed. She said nothing. Even though she didn’t want him to be penetrating her, she did not tell him to stop. The accused wasn’t talking either. Once he ejaculated, PAD got up and went to the bathroom.

It was about 1 AM. [ 13 ] The reason she didn’t object was because she didn’t want him to keep talking and bugging her. She knew that if she said no he would keep on insisting and so she just let him “finish”. The accused knew that she didn’t want him to penetrate her.

[ 14 ] After the incident, P.A.D. spent 15 minutes in the bathroom. She sat on the toilet seat, crying and trembling. At one point, the accused came to give her her clothing and told her to put on her shirt. They did not have any discussion. [ 15 ] Eventually she went to sleep on the couch and the accused slept in the bedroom. [ 16 ] The next morning, each of them showered. P.A.D. suggested that they go to Tim Hortons. The accused went ahead.

P.A.D. was on the phone with a friend but she went to meet him in the parking lot of the restaurant after her phone call. [ 17 ] The accused then said that he needed to leave to go to Montréal. P.A.D. said that she needed to go to her friend’s house. The accused offered to drive her there and she accepted. [ 18 ] The accused asked P.A.D. if she would tell anybody what happened.

She replied that she wouldn’t but that it wasn’t okay and that he knows it. [ 19 ] P.A.D. told the accused that she wouldn’t work that night but that she could work on Monday. (She may have told him that when she called him on the phone from a friend’s house later that day). The accused said that he didn’t need her at work. P.A.D. is certain that she did not work that Saturday night (April 13 th ). [ 20 ] P.A.D. called the accused during the week in order to inquire about her pay. At his request, she attended the restaurant on Saturday, April 20 th , and received her paycheck.

The accused was at the restaurant cleaning tables and “Shamim” (one of the other bosses) gave her her check. [ 21 ] P.A.D. was very emotional on the Saturday and Sunday following the incident. On Monday morning, she called her counsellor at the CLSC who told her that she should go to the hospital to do a “rape kit”. She went to the hospital on the night of Monday, April 15 th . [ 22 ] P.A.D. reported the incident to the police on Tuesday, April 16 th . She wrote a seven or eight page statement.

In the statement, she forgot to mention that he had hurt her when he penetrated her. [ 23 ] P.A.D. also provided a video statement on May 1 st , 2019 which lasted a few hours. She is sure that she mentioned that he hurt her in that statement. [ 24 ] P.A.D. did not give the accused a condom. She keeps condoms in her house but did not give him one. Tips at work [ 25 ] P.A.D. was cross-examined extensively about the policy regarding tips at the restaurant and her behaviour in relation to these tips. [ 26 ] She explained that when she was hired, she was advised that all of the servers would share tips.

Tips were to be placed into a pot. The employees would then receive their share of their tips on their paychecks. [ 27 ] P.A.D. acknowledges that she sometimes kept tips instead of putting them in the pot. She did so because she was informed by one of the other employees that they wouldn’t really get their tips back. [ 28 ] On one occasion, the accused and Shamim confronted her because she kept tips instead of putting them in the pot. She knew what she had done was wrong and offered to give the money back but they refused.

Asked about the possibility that she was suspended because of that, she states that she was never fired nor suspended. The defence The accused [ 29 ] In April 2019, the accused and his partner Shamim owned a restaurant in Granby. P.A.D. worked there for a few days. She worked on Friday and Saturday nights from 5 to 10 PM. She never worked on any other days of the week. [ 30 ] On Friday, April 12 th , P.A.D. invited the accused to sleep over at her apartment. She lived right next door to the restaurant.

The reason she invited him was to make it unnecessary for him to travel back to Montréal on Friday night only to have to return to Granby to be at the restaurant for lunch time on Saturday. [ 31 ] P.A.D. finished working at about 10 PM and went home. The accused joined her at her residence at 10:30 PM. They sat on the sofa, watched TV and chatted. She made him tea. [ 32 ] At about 11:30 PM the complainant suggested that they go to bed and talk there. They were on the bed talking, very close together and eventually they went under the covers.

The accused had not brought “sleeping clothes” but the complainant told him that it was okay for him to take his trousers off. He was wearing only his underwear. They were laughing and talking. [ 33 ] Eventually they began kissing each other. They embraced and then touched each other. He put two fingers on her waistline and then in her vagina. When he did that, she hugged him and embraced him strongly and 3 to 4 minutes later asked him to wait so that she could get a condom. He took off his underwear. By then, P.A.D had already taken off her nightgown and underwear.

She was naked. [ 34 ] They had sex with a condom. P.A.D. was very excited and was holding him tight, embracing him. She was never hurt. She was enjoying it the whole time. [ 35 ] Her actions made it clear that she was consenting. She clearly consented throughout.

[ 36 ] There was no point at which she was asleep. There was no interruption, the sexual activity was continuous. [ 37 ] Once they were done, she went to the bathroom, then he went to the bathroom, following which they both slept together in the bed. [ 38 ] They woke up the following morning at 7 or 7:30. They took a shower together. They discussed breakfast and he offered to pick up breakfast at Tim Hortons. He brought them each a bagel with cream cheese and coffee. [ 39 ] They ate their breakfast together at her house.

They watched TV until about 10 AM at which point he left to go buy some supplies for the restaurant at Maxi. He arrived at the restaurant at 11 AM. [ 40 ] The accused opened the restaurant for lunch at noon. Once lunch was done, the restaurant was closed. It reopened at 4:30 PM. P.A.D. arrived to begin her shift at 5 PM. That night Mr. Chowdhury was working as well. [ 41 ] At about 8:20 PM a group paid their bill and left $26 on a plate. As P.A.D. was cleaning the table, Mr. Chowdhury saw her put $5 into her pocket.

He informed both Shamim and the accused. [ 42 ] At about 10 PM, when the restaurant was closing, Shamim and the accused discussed what to do about the fact that P.A.D. had taken tip money. Shamim wanted to fire her but the accused suggested that she simply be suspended. During this discussion, which took place in Bengali, Mr. Chowdhury was right beside them. [ 43 ] Shamim and the accused were sitting at a table and asked P.A.D. to join them, at which time they confronted her about the tips. This was not the first time that she had taken tip money.

On the previous occasion, Shamim had wanted to fire her but the accused wanted to give her a chance. Also on that occasion P.A.D. had offered to give the money back but they refused it. [ 44 ] On Saturday, April 13 th when it happened again, Shamim again wanted to fire P.A.D. but ultimately they suspended her for three weeks. The accused could tell that she was not happy about it from her facial expressions. [ 45 ] Two days later, on the Monday, P.A.D. showed up at the restaurant asking for her paycheck. The accused asked her to come back on the following Saturday, which she did.

He gave her the paycheck and that was where things ended. [ 46 ] Exhibit D-1 is a paystub for 10 hours of work on Friday April 12 th and Saturday, April 13 th . Although P.A.D. had worked before then, it was for two 3-hour shifts of training. On those occasions, she asked to be paid in cash and also to have food from the restaurant. As such, D-1 is the one and only document that exists in relation to her pay. She also was not provided with a document confirming the end of her employment.

The accused explained that he sold the restaurant just a month later in May. [ 47 ] D-1 was not made with a view to the court proceedings. It was made prior to the accused even being aware that he was charged. [ 48 ] The accused wanted P.A.D. to continue working but she didn’t show up. He thought that she would return to work after the three week suspension and he asked her to return but she refused, which surprised him. [ 49 ] Since P.A.D. lived right beside the restaurant, the accused crossed paths with her a number of times following the incident. The accused estimates they saw other at least five times.

Their interaction was always polite and cordial. Neither of them ever discussed the night they had had sex. [ 50 ] Given that the accused had suspended her for three weeks, he was surprised that P.A.D. was always pleasant and did not treat him with animosity. [ 51 ] The accused has an excellent memory of the details of the evening.

He remembers the food ordered by the table that left the $26 tip as well as the denominations that comprised that tip. [ 52 ] He acknowledges that when he was interrogated by the police on May 29 th , he stated that P.A.D. stole $10 or $20, as opposed to $5 and that she had been fired as opposed to suspended. However he insists that she was in fact suspended. [ 53 ] His memory of the events is clearer now than it was at the time he made the statement. The police showed up at his house unexpectedly.

He was caught off guard and couldn’t fathom the allegations since he had crossed paths with P.A.D. a number of times and she hadn’t said anything. [ 54 ] Following his arrest, he gathered all of the documents and information that he needed in preparation for his defence. [ 55 ] The accused acknowledges that he did not mention D-1 in his statement. Khurshadur Chowdhury [ 56 ] Mr. Chowdhury has known the accused for more than 10 years from the Bengali community. He began working at the restaurant when it opened in late 2018 or early 2019. The owners are Shamim Aziz and the accused. [ 57 ] Mr.

Chowdhury met P.A.D. at the restaurant. She worked as a waitress on Friday and Saturday nights. She did not work any other day of the week. Her last night was on a Saturday in April. She always did five-hour shifts from 5 to 10 PM. [ 58 ] The last night that P.A.D. worked, Mr. Chowdhury was cleaning tables and noticed that she put $5 of a $26 tip in her pocket. He advised Shamim and the accused. This was at 8 or 8:30 PM. He knew that the policy on tips was that the wait staff was supposed to put the money in a pot by the cash.

[ 59 ] When the restaurant was closing, he heard the two owners discussing the situation. His understanding was that Shamim wanted to fire her but that the accused said they should just suspend her. [ 60 ] Shamim and the accused called P.A.D. over and ultimately they fired her. He heard the accused tell her that she was fired. He never saw her work again. [ 61 ] Mr. Chowdhury worked mainly in the kitchen but worked on the floor if the restaurant was busy. Although he tends to be in the kitchen on weekdays, he knows who else is working at the restaurant.

ANALYSIS General principles [ 62 ] In criminal law, a person charged with an offense is presumed innocent unless the prosecution proves his or her guilt beyond a reasonable doubt. This principle, known as the “presumption of innocence” is the cornerstone of Canadian criminal law and is protected in

section 11d) of the Canadian Charter of Rights and Freedoms [1] . [ 63 ] The burden of proof in criminal matters – that of proof beyond reasonable doubt - is inextricably linked to the presumption of innocence [2] . This burden belongs to the Crown and it never shifts to the accused. [ 64 ] The concept of “proof beyond a reasonable doubt” is difficult to define. It is a higher burden than that which exists in civil matters [3] .

If the Court concludes that the accused is “probably guilty”, it must acquit. [ 65 ] On the other hand, proof beyond a reasonable doubt does not involve proof to an absolute certainty; it is not proof beyond any doubt nor an imaginary or frivolous doubt [4] . [ 66 ] The existence of a reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence [5] .

Principles applicable in cases of contradictory versions [ 67 ] In the case of W.(D . ) [6] , the Supreme Court of Canada outlined the approach to be followed by courts in evaluating contradictory versions in order to respect the burden of proof beyond a reasonable doubt. [ 68 ] First, the Court must decide if it believes the accused.

If it does, it must acquit. [ 69 ] Second, even if the Court does not believe the accused, it must ask whether his or her testimony raises a reasonable doubt. [ 70 ] Third, even if the Court does not believe the accused and determines that his or her evidence does not create a reasonable doubt, the Court must ask itself whether the Crown has succeeded in proving the essential elements of the offense beyond a reasonable doubt. [ 71 ] At each step, the evidence must not be assessed in a vacuum and must be evaluated with a view to all of the evidence, including the evidence presented by the prosecution. [ 72 ] A criminal trial is not a credibility contest.

If the Court does not know who to believe, it must acquit. The essential elements of sexual assault [ 73 ] The actus reus of sexual assault comprises three elements [7] : (1) touching (2) the sexual nature of the contact; and (3) the absence of consent [ 74 ] It is important to note that consent must be given to the specific sexual activity in question. The fact that an individual consents to some sexual activity does not imply a generalized consent to all sexual activity.

Consent can be withdrawn at any time. [ 75 ] The mens rea of sexual assault comprises two elements [8] : (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched Application [ 76 ] The only live issue in this matter is that of consent. [ 77 ] More specifically, the defence alleges that the prosecution has failed to prove the absence of consent, and hence the actus reus of the offense, beyond a reasonable doubt. [ 78 ] The version of the accused is that the complainant consented to the sexual activity throughout. [ 79 ] While this aspect of his testimony was not shaken in any way in cross-examination, the prosecution invites the Court to analyse the credibility of the accused with a view to the entirety of his testimony while keeping in mind the testimony of P.A.D. as it is required

to do. [ 80 ] The prosecution argues that the accused was trying too hard to convince the Court of the veracity of his version, even refusing to recognize contradictions between what he stated to the police and the account of the events he provided in court.

For example, throughout his testimony, he repeatedly insisted that P.A.D. was suspended and not fired, despite stating the contrary to the police just six weeks following the alleged incident. [ 81 ] The prosecution also argues that the theory of the defence that P.A.D. falsely claimed that the accused sexually assaulted her because she was angry about having been fired is not borne out by the evidence. He underlines that by the accused’s own admission, P.A.D. was cordial to him when they crossed paths following their night together.

Furthermore, there is nothing in the evidence which suggests that P.A.D. threatened to make a false complaint. [ 82 ] According to the prosecution, the accused even fabricated evidence in order to support his version. More specifically, the prosecution suggests that D-1 - a paystub which indicates that P.A.D. worked for a total of 10 hours in the pay period between April 7 and April 20, 2019 - is not authentic. On this point, the prosecution points out that it refers to P.A.D. without reference to her last name.

The prosecution also finds it suspicious that this it is the only paystub that exists despite the accused’s testimony that P.A.D. worked for 2 weeks or even a month. Finally, the prosecution finds it suspicious that this document was created, while the document that every employer is required to provide confirming the end of employment was not. [ 83 ] In addition, the prosecution suggests that the testimony of Mr.

Chowdhury should not be believed as he is an old friend of the accused who clearly wanted to do whatever he could to help him. [ 84 ] The arguments put forward by the prosecution are not wholly without foundation. That being said, even if the Court does not totally believe the accused’s testimony, it must ask itself whether his testimony, evaluated in the context of the whole of the evidence, raises a reasonable doubt. [ 85 ] As for the argument about D-1, the Court rejects the contention that it was made to somehow bolster the accused’s defence.

The document was shown to P.A.D. who acknowledged it and agreed with its contents. [ 86 ] That being said, the Court considers this document to be almost wholly irrelevant. [ 87 ] The Court understands that the reason the defence deposited this document was to prove that P.A.D. only worked for 10 hours during the week of the alleged sexual assault, and, in fact, did two 5-hour shifts on Friday, April 12 th and Saturday, April 13 th . [ 88 ] P.A.D. did not take issue with the fact that she worked 10 hours during the relevant pay period.

However, she claims that some of those hours were done on the Monday, Tuesday and Wednesday night prior to the incident. She also insists that she did not work on the Saturday night. [ 89 ] Given that the paystub does not mention which days P.A.D. worked, it does little to assist the Court in resolving the contradictory testimony on this point. [ 90 ] As for the testimony of Mr. Chowdhury, the Court does not believe that he deliberately lied in order to assist his friend. However, his testimony is of limited or no assistance. [ 91 ] Mr.

Chowdhury confirmed, as did P.A.D., that the policy at the restaurant was for the servers to pool their tips together. [ 92 ] Mr. Chowdhury confirmed, as did P.A.D., that she had taken tip money despite this policy. [ 93 ] However, when asked if he was certain as to when this happened, Mr. Chowdhury could not confirm the actual date. [ 94 ] Mr. Chowdhury stated that P.A.D. was fired, and not suspended, contrary to the testimony of the accused. On the other hand, he acknowledged that the conversation with P.A.D. took place in English which he doesn’t understand very well. (Like the accused, Mr.

Chowdhury testified via an interpreter during the trial and it was clear that his mastery of the English language was quite limited). [ 95 ] Mr. Chowdhury also testified that P.A.D. worked on Friday and Saturday nights. He is certain that the last time she worked was on a Saturday night. While the Court does not believe that Mr. Chowdhury is deliberately lying, the Court questions the reliability of his testimony. Unfortunately, Mr. Chowdhury was not asked why or how he remembers these details. The Court has no idea when Mr.

Chowdhury first became aware of the charges, nor when he was first asked what he remembered about P.A.D. and her short employment at the restaurant. In the circumstances, the Court does not accord significant weight to his testimony. [ 96 ] Ultimately, the Court is left with the version of the accused and that of the complainant. [ 97 ] In evaluating the testimony of the accused, the Court does not make much of the contradiction between the accused’s statements to the police that P.A.D. had been fired as opposed to his insistence at trial that she was suspended.

The accused explained that he was completely taken off guard when he was arrested and had no knowledge of the allegations against him. More importantly, the interrogation took place in English, without a Bengali interpreter. The Court was able to observe throughout the trial, during which the accused was assisted by an interpreter, that although the accused speaks and understands some English, he is far from totally bilingual. [ 98 ] As acknowledged by the prosecution, the version of the accused with respect to the sexual activity was not shaken in cross- examination.

His version of the events was clear and detailed. Much of his description of the night leading up to the sexual activity was corroborated by P.A.D. In fact, the versions only start to diverge when the accused allegedly spread the complainant’s legs while she was sleeping [9] and penetrated her. [ 99 ] The accused testified that there was never an interruption in their activities as put forward by the complainant. The intimacy was

continuous, and the complainant was never asleep. She was actively engaged in the sexual activity from beginning to end, showingexcitement and eagerness to proceed. [100] In fact, according to the accused, after he inserted his fingers into her vagina she went to get a condom. [101] P.A.D. acknowledges that she kept condoms in her apartment.

This lends some reliability to the testimony of the accused, whocould not have been aware of this fact. [102] P.A.D. and the accused also provide similar descriptions of the events following the sexual activity, with only minor variances.This corroborates, to a certain extent, the version of the accused. [103] The accused stated that after the intercourse, they each went to the bathroom, and then slept together in P.A.D.’s bed. Both theaccused and P.A.D. testified that in the morning they took showers. However, according to the accused, they showered together.

P.A.D.said they took individual showers. [104] Both the accused and P.A.D. testified that they had Tim Hortons for breakfast. According to the accused, he picked it up andbrought it back to the apartment. P.A.D. says that they ate together in the parking lot. [105] As for the surrounding facts, P.A.D. acknowledges that she took tips contrary to restaurant policy. That being said, she denieshaving been suspended for this behaviour. [106] The Court is not convinced that P.A.D. fabricated the allegation of sexual assault as revenge for being fired.

But the Court doesnot have to be convinced of that in order to acquit. [107] In terms of P.A.D.’s testimony, the Court cannot ignore the fact that in the statement she provided to the police less than fourdays after the incident, she did not mention that she told the accused to stop penetrating her because she was uncomfortable or in pain.Given that this was central to her testimony at trial in explaining her lack of consent, it is surprising that she wouldn’t have mentioned it. [108] The Court underscores that it completely disregards the myths and stereotypes put forward by defence counsel in his closingarguments.

The fact that P.A.D. invited the accused to sleep over despite having only one bed, the fact that she admits to not havingresisted, and the way she was dressed, are totally irrelevant to the only issue in this case, which is whether or not her absence of consenthas been proved beyond a reasonable doubt.

There are absolutely no inferences to be drawn from these facts[10]. [109] Also, as mentioned by the Court, in the absence of expert evidence, the Court rejects the contention of the defence that anyconclusion can be drawn with regards to the tests taken at the hospital on the Monday following the events, which revealed an absence ofsperm or DNA. [110] In sum, while the testimony of the accused is not entirely believed, his version, when evaluated in the context of all of theevidence, raises a reasonable doubt. [111] This decision does not mean that the Court has concluded that P.A.D. is lying.

As stated earlier, the Court considers that both herversion and that of the accused are plausible. In such circumstances, the criminal burden of proof beyond a reasonable doubt has notbeen met. CONCLUSION For these reasons, the accused is ACQUITTED. __________________________________ SUZANNE COSTOM, J.C.Q. Me Bruno MénardCounsel for the prosecution Me Leonard WaxmanAttorney for the accused Dates of hearing: June 8 and 9, 2021 [7] R. v. Ewanchuk, (SCC), [1999] 1 SCR 330, para 25; R. v. J.A., 2011 SCC 28, para 23; R. v. Barton, 2019 SCC33, para 87. [8] R. v. Ewanchuk, supra note 7, para 42; R. v.

J.A., supra note 7, para 24; R. v. Barton, supra note 7, para 87.