R v Chauhan: Sexual Assault, Consent, Intoxication and Honest but Mistaken Belief (Part I)
This commentary is the first part of a two-part series detailing and critiquing the decision of Thorburn J in R v Chauhan. The first part addresses the relevant facts, rules and analysis as it relates to the first complainant in the case, A.C. The second part will address the second complainant, P.W.
On September 25, 2014, Thorburn J ruled that Amitabh Chauhan was not guilty of drugging or sexually assaulting A.C., and that neither Chauhan nor Suganthan Kayilasanathan were guilty of (a) drugging for the purpose of overpowering and sexually assaulting P.W., or sexually assaulting P.W.; or (b) of being a party to a sexual assault by another.
While I agree with Thorburn J that there was reasonable doubt that Chauhan sexually assaulted A.C. or that Chauhan met with A.C. in September or October 2003, I argue that Thorburn J has erred in law with respect to the sexual assault of P.W. by Chauhan and Kayilasanathan. As such, it is quite likely that the Crown will appeal Thorburn J’s ruling.
Facts Relating to A.C.
A.C. stated that she had met Chauhan, along with Cindy Legarie and Richard Boyle, during the ex-cadet weekend at the Royal Military College in Kingston in the fall of 2003. It was determined by evidence that the ex-cadet weekend was September 26 and 27, 2003. A.C. claimed that at some point that weekend, Chauhan drugged and sexually assaulted A.C.
Chauhan denied drugging or sexually assaulting A.C. and further stated that the incident never happened. According to Chauhan, he was not at the Royal Military College during the ex-cadet weekend or at any time in September or October 2003. He claimed that he was in Winnipeg on either the September 26-27 weekend or October 3-4 weekend.
Legarie stated that she could not have met Chauhan or A.C. on the ex-cadet weekend as was suggested by A.C., since Legarie was deployed to Bosnia on September 22, 2003. However, Legarie did claim that she met both Chauhan and A.C. on or about September 6, 2003 at a soccer game. Nevertheless, there is evidence to support Chauhan’s statement that he flew to England on August 18, 2003 and returned on September 16, 2003.
Credibility of A.C.
According to Thorburn J, when reviewing and assessing evidence presented by the complainant, “[t]he court must be satisfied of two things beyond a reasonable doubt: (1) that a complainant is a credible witness, and (2) that her account is reliable” (R v Chauhan, 2014 ONSC 5557 [Chauhan], para 39 citing R v JW, 2014 ONCA 322, para 26). Additionally, “[c]redibility is the witness’[s] willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall and recount events” (Chauhan, para 40).
With respect to the first stage of the test for reviewing and assessing evidence from a witness, Thorburn J concluded that “A.C. was a credible witness who testified in a forthright manner” (para 90). There was also evidence given by two other witnesses that indicate that A.C. did not fabricate her claim against Chauhan upon hearing of P.W.’s accusation against Chauhan (para 94). Furthermore, Thorburn J found that, although some lesser details of the incident may be forgotten in the approximately eight years between the incident and its reporting, other more poignant memories may not be forgotten (para 96).
Thorburn J, having concluded that A.C. met the first step of the test, moved on to address the second step of the test: reliability. Thorburn J found that the reliability of A.C.’s claim was outweighed by Legarie’s testimony and the evidence to support her testimony, that the incident could not have occurred during the time period A.C. suggested, as Legarie had been deployed to Bosnia on September 22, 2003, and thus could not have attended the ex-cadet weekend. Therefore, A.C. failed to meet the second step of the test.
As such, Thorburn J ultimately concluded that A.C.’s rendition of the incident was far too inaccurate to satisfy the court beyond a reasonable doubt that A.C. and Chauhan were together during the ex-cadet weekend on September 26-27 or that Chauhan drugged or sexually assaulted A.C. during the ex-cadet weekend (paras 109-110).