R. v. Khan
Her Majesty the Queen, and
Sayeed Khan
W.B. Trafford J.
Criminal law -- Offences -- Sexual offences -- Rape or sexual assault -- Consent -- The accused,charged with sexual assault, was found not guilty. Trial of the accused, who was deaf, charged with sexual assault -- Two police officers observed theaccused and the 18-year-old complainant kissing in a phone booth at a subway station -- Thecomplainant, who had been drinking, approached the officers and told them the accused hadinitially approached her to help her as she was stuck at the station without transportation but hadthen raped her -- The accused, who had also been drinking that night, testified that he and thecomplainant had talked for a few minutes and then had consensual intercourse -- Medical evidencedid not support the complainant's version of events -- HELD: The accused was found not guilty --There were credibility issues with both the accused and the complainant -- The Crown had notestablished beyond a reasonable doubt the absence of consent.
R. Zoppi, for the Defendant
The Complainant's Conduct on March 28, 2003 The Complainant's Efforts to Arrange Transportation The Defendant's Conduct on March 28, 2003 The Initial Contact between the Defendant and theComplainant The Complainant's Demeanour in the Cruiser The Disclosure of the Surveillance Tapes at KennedyStation The Physical Examination of the Complainant The Post-Incident Conduct of the Defendant THE CREDIBILITY OF THE DEFENDANT AND THE COMPLAINANT On Sunday, March 29, 2003 at approximately 3:45 am Constable Cates and Constable Kesic of the Toronto Police Service were sitting in a marked police cruiser at the Kennedy Subway Station inScarborough. The subway station was closed. It had been a wet, rainy night. Constable Cates, seatedin the front passenger seat of the cruiser, noticed a female and a male inside a phone booth situatednot far from the cruiser. The female appeared to be on a cell phone. They were behaving ". likeboyfriend and girlfriend .". There was no one else in the area. Suddenly, the female approached him, staggering as she walked. She said ". I've been raped . he tried to help me and then tookadvantage of me ." There was a strong odour of alcohol about her. She identified herself as L.C.
At this stage of the incident, Constable Cates noticed the man leave the phone booth and walkwestward. After the complainant was placed into the rear seat of the cruiser, Constable Kesic andConstable Cates drove towards the man. Constable Cates rolled down his window and said "stop"two or three times. The man did not comply with the direction. Constable Cates left the cruiser andtook the man by the arm. He motioned towards his ear and Constable Cates realized that he wasdeaf. Shortly afterwards, the man, Sayeed Khan, was arrested by Detective Constable Askin forsexual assault.
This is the judgement of the Court at trial.
Let me begin, with an overview of the case, consisting of a review of the complainant's testimony and the defendant's testimony in the most general terms, and then move to thecircumstances of the case, as found by the Court. In the context of those findings of fact, I will thencomment on the credibility of the complainant and of the defendant, within the principles of R. v.
W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).
The complainant testified that after drinking at a pub with some friends, she took the subway home. She fell asleep and missed her intended stop, Main Street. She was awakened by a TTCemployee at the Kennedy Station and asked to leave the train. The subway was closing. It was about2 am. She did not have a sufficient amount of money to pay for a taxi. She called a friend, whoeventually agreed to come and pick her up. She was crying. The defendant approached her. Sheimmediately determined that he was deaf. They exchanged some notes. He began to kiss her. Shewas in shock. She froze. She did not know what to do. He put his hand under her bra and touchedher breast. He then unbuttoned her pants, pulled them down and had oral sex with her. She wasworried that if she resisted him physically he might harm her. She wanted to be safe. The defendantthen unzipped his pants and penetrated her with his penis, anally and vaginally. When he firstpenetrated her vagina, he used a condom. Later, he removed the condom and continued to havevaginal intercourse with her. She did not consent to any of these acts. She was compliant becauseshe feared that he might become violent if she resisted him at all. When he completed the vaginalintercourse, they walked to the phone booth. They kissed one another for a few minutes. She wasworried that if she resisted him he would become angry with her. When she saw the police cruiser,she ran from the booth and made a complaint to one of the officers.
On the other hand, the defendant testified that he, too, had been drinking with a friend. He left the pub and proceeded home on the subway, getting off at the Kennedy Station. The subway was closing. There were no buses at the station. As he walked around looking for a taxi, he saw thecomplainant. She was on a cell phone crying. He approached her with the intention of helping her.
They exchanged notes for a few minutes. Eventually, he wrote that he had to go home and kissedher on the cheek. She responded by kissing him on the lips and putting her tongue into his mouth.
He put his tongue into her mouth too. This mutual kissing lasted for two to three minutes. He thentook her by the arm towards a wall in the area, out of the rain. There they continued to kiss andembraced one another. He touched her breast over her clothing. She responded by touching hispenis. He believed that she wanted to have intercourse with him. He took a condom from his pocketand, after lowering his pants, put it on. At that stage, the complainant undid her pants. He helped hertake them down to her ankles. She turned, in compliance with a gentle force by him, and faced thewall. She leaned her upper body towards the wall. The defendant attempted to penetrate her vaginafrom behind. He touched her anus but did not penetrate it completely. He then found the vagina andpenetrated it. The vaginal penetration was not complete. She rocked back and forth with him duringthe vaginal intercourse. He believed that she was consenting because she enjoyed it. He withdrewhis penis and removed the condom. He threw it onto the ground. The intercourse lasted for aboutfive to ten minutes. There was no intercourse after he removed the condom. At no time did heperform oral sex on her. He took her to the phone booth to protect her from the rain. She used hercell phone. When she saw the police cruiser, she left the phone booth and walked towards the policeofficers. Eventually, he left it too, and walked around the area looking for a taxi.
This, then, is the general overview of the case.
In a case like this one, it is important to expressly state that the onus of proof is on the Crown to prove its case beyond a reasonable doubt. As was stated by Cory J. in R. v. W.(D.), supra, at p. 409: In a case where credibility is important, the trial judge must instruct the jury thatthe rule of reasonable doubt applies to that issue. The trial judge should instructthe jury that they need not firmly believe or disbelieve any witness or set ofwitnesses. Specifically, the trial judge is required to instruct the jury that theymust 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 reasonabledoubt as to his guilt after considering the accused's evidence in the context of theevidence as a whole.
Ideally, appropriate instructions on the issue of credibility should be given, notonly during the main charge, but on any recharge. A trial judge might wellinstruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you mustacquit.
Secondly, if you do not believe the testimony of the accused but you areleft in reasonable doubt by it, you must acquit.
Thirdly, 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 doaccept, you are convinced beyond a reasonable doubt by that evidence ofthe guilt of the accused.
It is this legal framework, as applied to the evidence in this case, that will determine the verdict.
Now, I will set out the circumstances of the case as found by the Court.
Ms. L.C. was 18 years old in March 2003. She had moved back into her parents' home. She, at her own initiative, had tried to live on her own but had decided to return to her parents. At the ageof 13 years, she experienced some symptoms of clinical depression. At age 17, she was diagnosedwith an anxiety disorder, a condition that led to panic attacks. She has used prescribed medicationsfor these conditions, including Flurazepam and Zoloft. Other drug samples were given to her bymedical doctors to treat these conditions. One such medication was Mirtazapine. On March 28,2003 she was using medication as directed by her doctors.
Flurazepam is a drug used for the treatment of insomnia. It is a central nervous system depressant that can cause drowsiness. Mirtazapine is a drug used for the treatment of depression. It,too, is a central nervous system depressant that can cause drowsiness. A forensic toxicologist at theCentre of Forensic Sciences detected Mirtazapine and a metabolite of Flurazepam in thecomplainant's blood when it was examined after the incident on March 29, 2003.
No expert evidence was called by the Crown to prove the effect, if any, of the complainant's depression and anxiety disorder on her ability to observe, recollect and narrate the events on March29, 2003.
Nor was any expert evidence called to prove the effect, if any, of Flurazepam and Mirtazapine, alone or in combination with any other prescribed drugs that were ingested by the complainant atmaterial times, and alcohol, on her ability to observe, recollect or narrate the events of March 29,2003.
B.4 The Complainant's Conduct on March 28, 2003 The complainant's conduct on March 28, 2003 is a material part of the events leading to the On March 28, 2003 the complainant was employed by a market research firm located near Bloor Street East and Sherbourne Street. She did not work that day because she had a medicalappointment. However, at approximately 10:30 pm she joined some other employees from the firmat a pub to pay tribute to one of her supervisors who was leaving. While there, she was servedalcoholic beverages even though she was an under age patron. She estimated that she consumedabout six ounces of alcohol over a period of approximately two hours. She was probably incorrectin this estimate. A forensic toxicologist examined samples of her blood and urine at the Centre ofForensic Sciences and determined that they contained ethanol, in the amount of, respectively, 140mg/100 ml of blood and 182 mg/100 ml of urine. No evidence concerning the taking of these bodilysamples from the complainant or relating these readings to the time of the alleged offence, namely,sometime between approximately 2 am to 4 am on March 29, 2003, was called by the Crown. Theblood sample was taken at Women's College Hospital around 8:20 am on March 29, 2003. Again,no expert evidence was called by the Crown to prove the effect, if any, of this amount of alcohol inconcentration with the amount of the metabolite of Flurazepam and Mirtazapine, as found in thecomplainant's body, on her ability to observe, recollect and narrate the events of March 29, 2003.
In any event, she left the pub, probably alone, no earlier than 12:30 am on March 29, 2003.
She walked to the Sherbourne Subway Station. She was going home. She boarded an eastbound train with the intention of taking a taxi from the Main Street Station to her parents' home.
However, she fell asleep and missed the stop. She was awakened by a TTC employee at theKennedy Station who told her to leave the train. She went upstairs and was told by anotheremployee that she had just missed the last westbound train. The subway was closing. It was about 2am. Consequently, she left the station.
B.6 The Complainant's Efforts to Arrange Transportation She immediately realized that there were no buses in the area. She hoped to hail a taxi, but she had no cash with her. She decided to call a friend, Caroline Kawa, who lived near OssingtonAvenue and Dupont Street, to ask her for some help. Using her cell phone, she spoke to one of Ms.
Kawa's roommates. He awakened Ms. Kawa around 2:30 am and told her that L.C. had called, andwas stranded at the Kennedy Station, crying. As a result, Ms. Kawa called the complainant. Theytalked about Ms. Kawa paying for a taxi to pick-up the complainant and take her to Ms. Kawa'sresidence. During this conversation, the complainant began to cry. She was very distressed by theend of the conversation.
Relying upon Ms. Kawa's intention to make such an arrangement with a taxi, the complainant remained at the Kennedy Station. A number of taxis came, probably two. Neither of them wouldtake the complainant as a fare when she asked them to rely upon her interac card. Neither of themhad come to the station in furtherance of an arrangement with Ms. Kawa. Consequently, there wereseveral more cell phone conversations between Ms. Kawa and the complainant. Eventually, Ms.
Kawa agreed to drive to the Kennedy Station herself to pick-up the complainant. Ms. L.C. believedit would take her about one hour to get there.
B.7 The Defendant's Conduct on March 28, 2003 Before continuing with the narrative of the circumstances of the case, as found by the Court, let me next briefly review the defendant's conduct on March 28, 2003. He went to a bar nearLansdowne Avenue and Queen Street West with a friend. Both of them are deaf. They had a goodtime, chatting and drinking. They had two pitchers of beer, each consuming about the same amount.
At about 1:45 am the defendant left the pub and took a bus to the Lansdowne Station. He was goinghome. He lived with his parents in an apartment on Markham Road. He was headed for theKennedy Station. When he arrived there, the staff was in the process of closing the station for thenight.
The Initial Contact between the Defendant and the Complainant The defendant left the station. He waited for a bus, but one did not come. He decided to look for a taxi. He had enough cash to pay for a taxi. He walked around the area. He saw thecomplainant, squatted down and crying. She was talking on a cell phone. He decided to help her.
When he first approached the complainant, it appeared to her that he was trying to say something.
She quickly determined that he could not hear or speak. She has some relatives who are deaf. Shespeaks to them by exchanging notes. She believed that she could speak to the defendant byexchanging notes.
The evidence concerning the notes written by each of them is imprecise. The notes were not entered as an exhibit at trial. However, it appears that the conversation was an amicable one. To thecomplainant, the defendant did not present any risk to her. She felt that she had lots of time to passuntil Ms. Kawa arrived. She was, therefore, willing to talk to the defendant. As to the substance oftheir conversation, it apparently included an introductory greeting by the complainant, a statementby the defendant that he was deaf, a remark by the complainant that she had some deaf relatives anda comment by the defendant that he was leaving, and going home. There may have been otherremarks by the defendant expressing a willingness to help her and a statement that there were nobuses or taxis in the area. Regardless of the exact substance of the conversation, it is clear that thedefendant kissed the complainant, perhaps placing his arm around her to console her at the sametime. At no time up to this stage of the incident had she given him any indication that she wanted toparticipate in any sexual activity. The defendant then kissed her on the lips. She was concerned anddid not know what to do.
It is at this stage of the incident that the versions of the complainant and the defendant differ materially. Before completing my findings of fact concerning the alleged offence, let me next dealwith the complainant's demeanour in the police cruiser; the presence of a condom at the scene, and the related forensic examination; the purported call by the complainant to 911; the reaction of the complainant to the information she received from ConstableGouveia concerning the availability of surveillance tapes at the Kennedy Station; the physical examination of the complainant at the Women's College Hospital,including her anus; and the post-incident conduct of the defendant.
B.9 The Complainant's Demeanour in the Cruiser When the complainant approached Constable Cates in the cruiser and thereafter at the scene of the incident, he made a number of observations about her condition. There was a strong odour ofalcohol about her. She was disoriented. She walked, not fast, slower than normal, staggering. Shewas upset, crying, very confused and seemed to be in a panic.
Caroline Kawa made similar observations when she sat with the complainant in the cruiser, and throughout the trip to the hospital. She was crying a lot. She was traumatized. She was terrified,and shaking a bit. Ms. Kawa had never seen the complainant this upset before. The slurring of herwords was due, in Ms. Kawa's view, to her crying rather than her consumption of alcoholicbeverages.
I accept this evidence. It is capable of confirming the complainant's credibility on the material issues of the case. However, one must also recall that she was very upset when she spoke to Ms.
Kawa on the phone, probably about 2:30 am. In my view, this circumstance, plus the failure of theCrown to call expert evidence, as summarized earlier in this judgement, make it inappropriate toaccept this evidence as confirming her reliability on the issue of consent, considering all of theevidence called at trial, including the defendant's testimony.
Let me, next, move to the discovery of the condom at the scene by Constable Cates. It was a freshly used condom that appeared to have a substance inside it. I accept this evidence and infer thatthe substance was the defendant's ejaculate. This evidence is to be considered in connection with thebodily fluid examinations of the complainant by the Centre of Forensic Sciences.
Semen was not detected on the vaginal smear.
Semen was not detected on the rectal smear.
A high level of acid phosphatase, typical of human semen, was detected on the condom.
However, spermatozoa, the cellular constituents of semen, were not detected. The DNA profile from the swab on the outside of the condom came from a female and matches thecomplainant's DNA profile at 9 STR. The probability that a randomly selected individual wouldcoincidentally share her DNA profile is estimated at 1 in 47 billion.
Therefore, I infer that the defendant wore the condom when he penetrated the complainant vaginally. If he removed the condom and repenetrated her vagina, one might expect that thecomplainant's vaginal swab would reveal the presence of ejaculate, or at least one of its constituentparts. No expert evidence was called by the Crown on this point. The absence of this expertevidence tends against the position of the Crown on this factual issue, that is, the second penetrationof the vagina, after the condom had been removed.
Let me move, next, to the evidence concerning a 911 call placed by the complainant. She testified that she did place a call to 911, apparently at the suggestion of Ms. Kawa. Sergeant Duthie,the officer-in-charge of this case, searched the 911 system for calls on March 29, 2003 fromCaroline Kawa, L.C. or anyone else from the Kennedy Station. No evidence of any such call wasfound.
Accordingly, I am satisfied that the complainant is incorrect on that point.
The Disclosure of the Surveillance Tapes at Kennedy Station Constable Gouveia contacted the complainant a few weeks after the incident and told her that the security tapes at the Kennedy Station were available. She was surprised and expressed someconcern to Constable Gouveia. The position of the defence is that this concern was based upon herknowledge that she consented to the sexual activity. When confronted with this theory incross-examination, the complainant disagreed. She acknowledged that she had expressed concern toConstable Gouveia. However, she explained that her concern was based upon the fact that she hadparticipated in the sexual activity out of fear rather than out of her own volition. She did notdemonstrably resist the attack. It was not a violent sexual attack. She believed the surveillance tapesmight be misinterpreted by an ordinary person. I accept her explanation on this point.
B.13 The Physical Examination of the Complainant The complainant was examined by the medical staff at Women's College Hospital, beginning around 5 am on March 29, 2003. There were no injuries in the vaginal area of her body. However, anurse noted two small lacerations, surrounded by blue discolouration, near her anus. Dr. Skalendanoted that no such lacerations were observed by him, but the anus was likely not as deeplyexamined by him. However, he noted no pain or discomfort on a digital examination of her anus.
No blood was observed in the anus.
This expert evidence is to be contrasted with the complainant's testimony. She testified that the defendant penetrated her anus with his penis, the penetration lasting about three to five minutes.
It was very painful. However, the pain subsided and she did not feel any pain in the anus when shewas at the hospital. She complained to the medical staff of an anal, and vaginal penetration. Theanal pain resumed when she left the hospital, lasting for about two weeks, and intensifying whenshe sat down or experienced a bowel movement. No expert evidence was called by the Crown toexplain, if possible, the absence of any injury to the anus, given a painful, penile penetration forthree to five minutes, and, further, the pattern of pain as described by the complainant. The failureto call such evidence tends against the Crown position on this issue of anal penetration. The cutsand discolouration observed by a nurse in the area of the anus are consistent with the defendant'sdescription of the difficulty in achieving vaginal penetration from behind, in a standing position,and the absence of any anal penetration, other than an incidental contact with the anus in the courseof locating her vagina with his penis.
B.14 The Post-Incident Conduct of the Defendant Lastly, let me focus on the post-incident conduct of the defendant. He did not prevent the complainant from using her cell phone. He did not interfere with her walking to the police cruiser.
He did not run from the phone booth when he saw the police. Rather, he walked away from thephone booth after they spent a few minutes kissing, looking for a taxi to take him home andthinking the police would take the complainant home. This evidence is consistent with thedefendant's version of the incident.
These, then, are the circumstances of the case, as found by the Court, subject to my comments on the credibility of the complainant and the defendant.
The Credibility of the Defendant and the Complainant Having considered the evidence as a whole, I am disinclined to accept the defendant as a truthful witness. His version of the incident is inherently unlikely. Two strangers who meet in thearea of a closed subway station on a rainy night in March are not likely to engage in consensualvaginal intercourse after a few casual remarks. Although he would have the Court believe that heintended to help the complainant when he saw her crying at the Kennedy Station, he did virtuallynothing of the sort. Rather, he exploited her vulnerability and engaged in sexual activity with her tosatisfy himself. However, the post-incident conduct of the defendant, as summarized earlier in thisjudgement, is consistent with the defence.
More importantly, the complainant's credibility is also suspect, looking at the evidence as a whole. The principles of R. v. W.(D.), supra, do not permit me to balance one version against theother and choose the one that is more likely correct. Rather, the Crown must prove its case beyond areasonable doubt. The failure of the Crown to call expert evidence, as I have noted in this judgement, tends against its position on the reliability of her testimony. The role, if any, of heranxiety disorder has not been negatived, especially in combination with the consumption ofalcoholic beverages and the ingestion of prescribed drugs. Her estimate of the amount of alcoholconsumed is likely incorrect, given the opinion of the forensic toxicologist. Her allegation of analpenetration is inconsistent with the noted observations of Dr. Skalenda. He was not called by theCrown to reconcile his observations with the complainant's version of the incident, if he could. Thecondition of the condom at the scene and the related bodily fluid analysis tends against the Crown'sposition on the removal of the condom and the resumption of vaginal penetration. The 911 call wasnot placed, as she recalled. Moreover, it is difficult to reconcile the complainant's version of theincident with Constable Cates' observations of their conduct in the telephone booth. In making theseobservations about her credibility, I am mindful of her testimony that her conduct was governed, atall material times, by a fear of violence, a fear that the defendant might produce a weapon to furtherhis attack, a fear that could compromise the judgement of any woman. Any such fear might lead awoman, particularly a woman who was 18 years old with a history of depression and anxietydisorder and under the influence of alcohol, to conduct that many reasonable people would regardas implausible. That perspective is not my perspective on this case. Rather, I am inclined to acceptthe complainant's version as correct in its material aspects.
However, looking at the case as a whole, the Crown has not satisfied me beyond a reasonable doubt of the absence of consent, for the reasons that I have given.
Accordingly, the defendant is found "Not Guilty".
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