R. v. Singh, 2019 NSSC 115

SUPREME COURT OF Nova Scotia Citation: R. v. Singh , 2019 NSSC 115 Date: 20190328 Docket: CRAM 479010 Registry: Amherst Between: Her Majesty the Queen v.

Harmandip Singh DECISION Restriction on Publication: s. 486.4 and s. 486.5 of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: March 27 and 28, 2019, in Amherst, Nova Scotia Written Decision: April 2, 2019 Counsel: Paul Drysdale, for the Crown Peter Planetta, for the Defence By the Court (Orally): [ 1 ] Harmandip Singh has been accused of having committed sexual assault. [ 2 ] There is no issue as to whether there was sexual contact between Mr. Singh and the complainant. I will refer to Ms. H throughout this oral decision as the complainant. I mean no disrespect by doing that.

The issue is whether the Crown has proven beyond a reasonable doubt that the contact happened without the consent of the complainant. Evidence [ 3 ] Two witnesses testified at trial yesterday. Mr. Singh elected not to lead evidence. No inferences can be made from that. Legal argument was completed this morning. [ 4 ] Cst. Vriend of the Amherst Police Department told about her involvement in the investigation. The complainant also testified. [ 5 ] The complainant said that she had opened an account on the online dating website known as Plenty of Fish in early 2017.

She began corresponding with a person on that site, known to her only by his user name, Alex. That person was Mr. Singh. Mr. Singh and the complainant did not meet in person or speak other than by text or through the Plenty of Fish application until March 12, 2017. [ 6 ] On that date, just after 9:00 am, Mr. Singh contacted the complainant. They eventually agreed to meet that evening at the complainant’s home. The contact by text messaging was light and not overtly sexual in nature. It was described to her as playful or provocative and she agreed that it was. The complainant asked what he, Mr.

Singh (Alex) wanted to do that night. Mr. Singh said “Whatever you want.” She replied “Not sure that is a good idea to tell me that hun”, followed by a “;)”. The complainant says the she intended it to be a smiley face but it appears to be a smiling face with an eye winking, known as a winky face. “Hun” is a word that she

says she uses a lot. She didn’t know what it might be short for. He gave a thumbs up sign. She asked if it bothered him that she was a larger woman. He said no. She asked for a picture of him and he said “I’ll show you my face to face.” [ 7 ] He arrived at around 7 pm. [ 8 ] When he arrived, the complainant said that he knocked on the door. She was sitting on the couch and didn’t get up to answer the door. She told him to come in. The complainant had, until that time, not seen Mr. Singh.

She was surprised that he wasn’t taller and in her words that he wasn’t “honestly, white”. [ 9 ] She says that she invited him to sit on the couch. He sat immediately next to her, not at the other end of the couch. She did not remember them introducing themselves. She believed then that his name was Alex, the name he used online in their communications. She could not recall any conversation. She said that she was just expecting that they would watch a movie together and talk. In cross- examination she was asked about an earlier statement in which she said she had just planned for them to talk.

They watched a movie for about 5 minutes. [ 10 ] She says that Mr. Singh started to kiss her. She says that she felt uncomfortable and moved away, as much as she could while still on the couch. She said that she might have kissed him back, but he was forceful. She said that she might have touched his leg but only by accident, brushing against it with her hand. In the preliminary inquiry she said that she could not remember touching his leg but allowed that she might have. [ 11 ] She felt uncomfortable. She got off the couch to change into jogging pants.

She thought they would be more comfortable than the stretchy jeans that she was wearing. She couldn’t find the jogging pants and came back into the living room. She sat on the couch again. He started kissing her again. She said that she kissed him back but stopped. [ 12 ] Up to this point there had been no discussion about sexual activity. Mr. Singh brought out two condoms and asked if she wanted to have sex with him. She says that she then said no. She didn’t recall the exact words.

This appears to have been within 5 or 10 minutes of their meeting in person for the first time. [ 13 ] She got up again and went to the bedroom. She said that she did not invite him into the bedroom. This time she was looking for her phone charger because her phone was losing its charge. It is not clear why that was an urgent requirement at the time when she was feeling so uncomfortable about what was happening. [ 14 ] Mr. Singh came into the bedroom. He took his pants off and stood directly in front of her. She said that he either “produced” or “presented” his penis. It is not clear which word she used.

She was sitting on the edge of the bed, and he was standing right in front of her. There was very little space and she says that she could barely move. She said that she felt like she was in a corner. She was not literally in a corner but it appears as though she meant that she felt that she had no other recourse. She said that she felt that she had no choice in the matter. She was asked whether anything had changed from the time she said no and she said that nothing had changed. [ 15 ] She performed oral sex. She stopped. She says that she didn’t like the taste or feel of it. [ 16 ] She says that Mr.

Singh then removed his clothing and said that he wanted to have intercourse. The complainant says that she didn’t know how else to get him out of her house. She removed her clothing and got on the bed in a way that she agreed signalled to Mr. Singh that she was ready to have sex with him. She said that she didn’t want to do it but she felt like she had no other choice. Mr. Singh put on a condom and initiated vaginal intercourse. [ 17 ] The complainant says that Mr. Singh then said that he wanted to have anal sex. She says that she said no.

At the preliminary inquiry she said that she said no only once anal intercourse had already begun. [ 18 ] She says that she turned herself around and tried to roll off the bed. In an earlier statement she said that he had turned her around to initiate anal intercourse. She says that Mr. Singh put his hand on her back which prevented her from getting off the bed. The complainant says that Mr. Singh then penetrated her anally with his penis using no lubrication. She said that she knew that there was no lubrication because she knew how a condom felt with or without lubrication.

She says that during that anal intercourse Mr. Singh said that the condom had broken. Despite her saying that it was painful and the condom breaking, she says that Mr. Singh continued with the anal penetration. She said that she was screaming inside her head but the words wouldn’t come out. [ 19 ] The complainant says that she told him to stop and Mr. Singh stopped. He grabbed his clothes and left the bedroom. She heard the toilet flush. The complainant got dressed and went into the living-room area. She says that when Mr. Singh came out of the bathroom he told her that he was sorry.

She says that she told him to get out of the house before she called the police. He then left. In her statement to the police the complainant said that she had not thought of calling the police until she spoke with her friend by text a short time after the event. [ 20 ] At around 7:45 pm the complainant contacted a friend. That is admissible only as evidence to establish the timeline. Mr. Singh was at the complainant’s home for about 45 minutes in total. It was the only time that they had ever seen each other. [ 21 ] The complainant called the police immediately. Cst.

Vriend said that the dispatch call came to her at about 8:00 pm. She took the complainant to the Cumberland Regional Health Care Centre where a sexual assault examination was completed. The rectal swab provided a DNA sample and that sample matched the DNA of Mr. Singh. [ 22 ] The complainant’s cell phone was taken as evidence by the police. She did not have access to it. Messages were received by the device from Mr. Singh just after he left. At 8:01 pm on March 12, 2017, his message to the complainant reads, “Are you ok dear?”. Eighteen minutes later he sent a message with “???”. At 8:41 pm he sent “Hey dear”.

The next morning at 4:48am he sent, “Hello good morning. Dear. How’s you feeling now??”. One minute later he sent, “ I hope you feel better now. I’m very feel (sic) embarrassed”, followed by a sad face emoji. Law

[ 23 ] Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. That applies to each act. A person may consent to some sexual activity and then withdraw consent to that activity. A person may consent to some acts but not to others. The consent of a person to some acts does not raise a presumption of ongoing consent or of consent to further acts. [ 24 ] Consent is subjective. The issue is whether the complainant was consenting, at the time, in his or her own mind.

That requires that a finding be made having regard to all of the circumstances and the context as to whether, in that moment, the complainant was consenting. That is determined from the complainant’s testimony, words that were spoken at the time, actions taken at the time and the context in which those words were spoken and actions taken. There are some limitations on how inference can be used to determine subjective consent. If a complainant expresses by words or conduct that he or she does not consent to an activity, or to continuing with an activity, there can be no consent. In other words, no means no.

It isn’t proper to go beyond those words or conduct to determine if in fact what the person meant was yes when they said no. No always means no. [ 25 ] A person can change their mind. A “no” can be revoked or changed to a “yes”. That requires a more explicit statement of consent. But “no” can never mean “yes”. [ 26 ] That subjective nature of consent requires the need for the concept of honest but mistaken belief in consent. A person may not subjectively consent and yet the accused person may honestly believe that she is consenting to the sexual contact or activity.

The circumstances in which that concept can be used as a defence have to be carefully circumscribed. Otherwise, the fundamental idea that consent is subjective would be dangerously undermined. Honest but mistaken belief is not a way to enable a complainant to resort to the use of myths and stereotypes. It does not switch the analysis over to the subjective belief of the accused person. [ 27 ] That belief cannot have arisen from the accused person’s self-induced intoxication or from recklessness or willful blindness.

The accused person has to have taken reasonable steps in the circumstances, known to the accused person at the time, to ascertain that the complainant was consenting. Honest but mistaken belief in consent can only be used as a defence where the complainant’s consent was affirmatively expressed by words or actively expressed by conduct. [ 28 ] Honest but mistaken belief in consent can be applied when the complainant does not say by words or express by conduct that she does not consent and does say by words or express by conduct that she does consent.

That covers a situation in which a person expresses consent but subjectively does not consent to sexual activity. It does not cover the opposite situation, where a person expresses a lack of consent and the accused argues that there was subjective consent. It affirms that no always means unequivocally, no. There is no circumstance in which the complainant can be found to have expressed a lack of consent by words or conduct and be found to have subjectively consented.

Honest but mistaken belief in consent can arise when words or actions express consent, and the accused mistakenly and honestly believes on that basis that the complainant is consenting. It does not arise when the complainant does not in some way express consent. And it does not arise when a complainant explicitly expresses a lack of consent. [ 29 ] The accused’s speculation about what was going on in the mind of the complainant is not a foundation for a defence. Belief in consent is not enough.

That belief must have been founded on words of consent or actions expressing consent and in the absence of words negating consent. [ 30 ] So, “no” always means “no”. It never means “yes”. A “no” can be revoked, but it has to be clearly revoked because inferring a revocation could have the effect of turning a “no” into a “yes”. There can be no honest but mistaken belief in consent in the face of a “no” that has not been revoked. Credibility and Reliability [ 31 ] The complainant agreed to have a man she had never met before come to her home, alone, after exchanging provocative messages with him.

That cannot be interpreted as a prelude to consent. A person has an absolute right to bodily and sexual integrity. It would be entirely wrong to use the circumstances in which the parties met to found an inference about consent. [ 32 ] “Suggestive” or “provocative” behavior or banter is no more suggestive of consent than would be the kind of clothing a person might wear. [ 33 ] The parties engaged in some kissing moments after Mr. Singh arrived. The complainant said that she didn’t want to do that, moved away and got up to go change her clothes. She returned to the couch.

She was under no obligation to try to escape. But she said nothing to indicate that she was not consenting and her actions indicate that that she was subjectively consenting to being kissed. She went back and sat next to the person who had been kissing her and they began kissing again. The surrounding circumstances do not permit any inference other than that she was consenting to that activity. [ 34 ] Mr. Singh presented two condoms and asked if she wanted to have sex. I accept her evidence that she said “no”. The complainant made mistakes in her evidence.

There were some inconsistencies between her trial evidence and her earlier statements. None of those go to basis of her narrative and none were indicative of an attempt to mislead. A witness’ evidence should be consistent in order to be worthy of belief. The complainant here was entirely consistent in insisting that she said “no” at that time. I accept that at that time, she said “no”. [ 35 ] That exchange is an important part of the context.

She was now alone, in her home, with a man she knew only by his first name, who was not what she had been expecting, who had clearly interpreted her invitation to come to her home as a hook-up or an invitation to have sex, who had two condoms and who was expecting sex. Her subsequent actions have to be interpreted having regard to that. [ 36 ] “No” does not mean later and is not an invitation to ask again. Once the word no has been uttered, any change of mind must be made explicit. Anyone who continues with sexual activity once that word has been spoken does so at some legal peril.

It is difficult to revoke the explicit “no” with inferences drawn from actions because those actions can be a person’s reaction to the refusal of the accused person to accept the explicit “no”. [ 37 ] The complainant went into the bedroom. She did that twice. She said that she did it to look for jogging pants and then a phone charger. It had the effect of getting her away from Mr. Singh.

[ 38 ] The second time when she went into the bedroom, Mr. Singh followed her in and took his pants off. He did not ask for oral sex but stood in front of her with his penis exposed. She was not required to run away or to scream to show her lack of consent. She said she felt she had no choice. There was no violence and no threat of violence or overt intimidation. But having said “no” earlier she could reasonably interpret any of his sexually aggressive actions as being a form of intimidation.

She said “no” moments before and he was now standing before her with his pants down. [ 39 ] Consent cannot be obtained by stubborn refusal to accept a “no”. She said that she felt she had no choice. As a woman alone in her home with a stranger who had just shown condoms and asked for sex, who had been told “no”, and who had followed her into her bedroom and taken his pants off, her concern has to be taken seriously. Some people might have told Mr. Singh to get out, then and there. She would not have known what his reaction would be to that. She had already said no and clearly that had not been enough.

Her response was to comply and have sex, despite her earlier expressed unwillingness to do so. [ 40 ] He asked for vaginal intercourse. Again, she had already said no. She subjectively believed that he was not prepared to take “no” for an answer. She removed her clothing and got on the bed in a way that would suggest that she was ready for sex. He cannot interpret that as a revocation of the earlier “no”. The complainant’s actions at that point are all seen in light of that earlier explicit “no”. [ 41 ] He asked for anal sex. She once again said no.

In the preliminary inquiry she said that she only said “no” when anal intercourse had begun. At trial she said that the “no” came in response to the request for anal sex. [ 42 ] In a moment like that one, it is not unreasonable to assume that a person’s ability to recall details might be impaired. Those details are still important. When there are two versions, the accused person should be given the benefit of the doubt. If it is assumed that she did not say “no” to the request for anal intercourse, she did not say “yes” either. She had, once again, already said no.

That “no” was not revoked by anything that she did. [ 43 ] The complainant said that she rolled over to try to get away. In her preliminary inquiry evidence, she said that he turned her over to begin anal penetration. She is not required to try to escape or to scream to in some way negative consent. If she rolled over to get away and presented herself in a position for anal intercourse, that cannot be interpreted as revoking her previous explicit non-consent. It is because those physical actions can be ambiguous that revocation of the lack of consent must be made clear. If she rolled over Mr.

Singh may have interpreted that as consent to anal intercourse. The complainant may have intended it as trying to get away. [ 44 ] When Mr. Singh presented the complainant with two condoms and asked for sex, she said no. I have accepted her evidence in that regard. She did not revoke that non-consent. Her subjective lack of consent remained.

Her actions, including performing oral sex must be considered in light of her expressed lack of consent, his persistence and the fact that she was alone in a house with a stranger who seemed intent on having sex with her that night and who had not accepted her expressed lack of consent. Mr. Singh cannot rely on an honest but mistaken belief in consent because the complainant had told him, in plain words, “no”. She never expressly changed that. [ 45 ] The complainant said that Mr. Singh tried to apologize that evening. She told him to go away before she called the cops.

It was put to her that in her police statement she had said that she had not thought of calling the police until she had spoken with a friend. Even if she had not threatened to call the police when Mr. Singh was leaving, he left with the complainant clearly very upset. [ 46 ] The police arrived minutes later. It appears to have been less than 30 minutes and perhaps closer to 15 minutes after Mr. Singh left. The complainant was agitated and upset when Cst. Vriend arrived. That level of upset is consistent with her narrative.

It is substantially more consistent with non-consensual contact than with consensual sexual activity that ended because of a broken condom and consensual sex that ended when she asked for it to end. [ 47 ] The next day Mr. Singh wrote a message to the complainant saying that he felt embarrassed. After the fact conduct has to be interpreted with great care. A person may offer an apology for a perceived slight that was not a criminal offence. An apology might be for leaving abruptly or for something that was said. Mr.

Singh inquired about how the complainant was “feeling.” He said that he hoped she was feeling better and that he was embarrassed. That may not refer to a physical feeling but to some emotional hurt. [ 48 ] That is consistent a least with the complainant’s testimony that when Mr. Singh left it was not on good terms. [ 49 ] In her testimony the complainant showed flashes of anger. She resented some of the cross-examination, though it was at all times respectful. This however was not a situation in which the complainant had any apparent incentive to fabricate evidence against Mr. Singh. He was a stranger.

She didn’t know his real first name or his last name. He was not a former partner or even an acquaintance. There are many reasons why people delay reporting sexual assaults. No inferences can be drawn from that delay. Here, the report was immediate. It was as immediate as it could possibly be. She had virtually no time to consider what she would say or to put together a story. There is no suggestion that she did any of that for some nefarious purpose. All of that supports her narrative. [ 50 ] I accept the complainant’s evidence that she said no when she was asked by Mr. Singh if she wanted to have sex.

She did not revoke that no. She at no point said “yes”. In the circumstances of this case, her actions did not amount to a revocation of the explicit non- consent. In light of her expressed non-consent Mr. Singh cannot be said to have had an honest but mistaken belief in consent. [ 51 ] I find Mr. Singh guilty of the offence as charged. Campbell, J.