WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
G.B.
Before Justice Richard H.K. Schwarzl
Heard on June 18, 19 and 25 2012; and January 11, 2013
Reasons for Judgment released on February 1, 2013
Mr. Andrew Falls for the Crown
Mr. Walter Fox for the Accused
SCHWARZL, J.:
1.0: INTRODUCTION
[1.] The prosecution alleges that on April 15, 2011 G.B. “B.” G.B. sexually assaulted his teenaged female employee, A.T., by kissing her lips and touching her breasts without her consent while the two were parked alone on a rural road in Caledon after counting political lawn signs.
[2.] Mr. G.B.’s defence is that he was never alone with A.T. in his car; that he did not drive her to Caledon; and that he never touched her for any reason, sexual or otherwise. In addition to Mr. G.B.’s testimony, the defence led evidence from two other people, both of whom testified that the complainant and Mr. G.B. were accompanied by Mr. C.J. the whole of the relevant time.
[3.] The dichotomy between the parties’ evidence places credibility into sharp focus as the central issue for me to grapple with.
2.0: APPLICABLE LEGAL PRINCIPLES
[4.] I adopt and apply the following applicable legal principles regarding credibility as summarized by Mr. Justice C. Hill of the S.C.J. in Peel Region:
[5.] The court may believe all, none or some of a witness' evidence: R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at para. 65; R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at para. 5; R. v. Abdallah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.) at para. 4, 5. The trier of fact is entitled to accept parts of a witness's evidence and reject other parts. Similarly, the trier can accord different weight to different parts of the evidence that it has accepted: R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 44.
[6.] The vast majority of sexual assault prosecutions turn on the evidence of the two principals - the complainant and the accused: R. v. S.C.M., [1997] O.J. No. 1624 (C.A.) at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: R. v. A.G. (2000), 2000 SCC 17, 143 C.C.C. (3d) 46 (S.C.C.); Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.).
[7.] A determination of a verdict must not devolve into a mere credibility contest between two witnesses because such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at 409.
[8.] Mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.) v. The Queen, supra at 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore, (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.) at 527; R. v. S.H., [2001] O.J. No. 118 (C.A.) at para 4-6. The court must not reach its verdict based on merely choosing between the defence and prosecution evidence. Instead, it is whether on the basis of the evidence as a whole, the trier of fact is left with a reasonable doubt as to the guilt of the accused: R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.); R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.) at para. 19 - 24.
[9.] The court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:
It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole."
See also R. v. Turmel (2004), 2004 BCCA 555, 197 C.C.C. (3d) 425 (B.C. C.A.) at para. 9-17; R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at para. 23; R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.); R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at para. 67; and R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.).
[10.] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. Mina, [1994] O.J. No. 1715 (C.A.) (affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415). In approaching the issue of credibility, the trier of fact in not only entitled to compare the evidence of the accused to the complainant, but has a positive duty to assess the evidence of the accused in light of the whole of the evidence, including the testimony of the complainant: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.); R. v. Boffo, [1997] O.J. No. 5156 (C.A.) at para. 12.
[11.] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided in the courtroom. This includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11. Demeanour evidence, while relevant, alone cannot suffice to found a finding of guilt: R. v. K.A. (1999), 1999 CanLII 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.); R. v. W.S. (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.).
[12.] Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: R. v. Wadforth, supra at para. 66.
[13.] A rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) (leave to appeal dismissed [2007] S.C.C.A. No. 69) at para. 53. See also R. v. R.E.M., supra, at para. 66; R. v. C.F., 2010 ONCA 424, [2010] O.J. No. 2499 (C.A.) at para. 9; and R. v. J.A., 2010 ONCA 491, [2010] O.J. No. 2902 (C.A.) at para. 19 to 23. In a "she said/he said" case, the trier of fact may reject the evidence of an accused and convict solely on the basis of accepting the evidence of the complainant, provided that the court also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in reasonable doubt, notwithstanding acceptance of the complainant's evidence: R. v. Jaura, [2006] O.J. No. 4157 (O.C.J.); Law Society of Upper Canada v. Neinstein supra. at para. 77; R. v. Beteta-Amaya, [2011] O.J. No. 5136 (S.C.J.) at para. 49 to 52.
[14.] Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established: R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at para. 8, 9; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4.
[15.] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect. The evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 (leave to appeal refused [1998] 1 S.C.R. vi, [1997] S.C.C.A. No. 461); R. v. Michaud (1996), 1996 CanLII 211 (SCC), 107 C.C.C. (3d) 193 (S.C.C.).
[16.] The fact that a complainant pursues a complaint cannot be a piece of evidence bolstering his or her credibility, otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 CanLII 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.) at para. 3.
[17.] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at para. 2-8; R. v. M.W.M., [1998] O.J. No. 4847 (C.A.) at para. 3; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at para. 4, 5. The trier of fact must remain vigilant to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.). Evidence of a witness' motive to lie is relevant as well to the accused as witness: R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont. C.A.) at para. 11-14; R. v. J.A.H., 2012 NSCA 121, [2012] N.S.J. No. 644 (C.A.).
[18.] A trier of fact may compare disputed handwriting with admitted or proved handwriting in documents which are properly in evidence: see e.g. R. v. Abdi (1997), 1997 CanLII 4448 (ON CA), 34 O.R. (3d) 499 (Ont. C.A.), at pp. 506-07; R. v. Malvoisin (2006), 36 M.V.R. (5th) 187 (Ont. C.A.).
3.0: ANALYSIS
[19.] If I believe Mr. G.B. I must acquit him. If I don’t believe him but his evidence leaves me in a state of reasonable doubt, I must acquit him. If I utterly reject his evidence, I can only find him guilty if I am satisfied that the evidence I do accept proves his guilt beyond a reasonable doubt.
3.1: The Complainant, A.T.
[20.] I found the complainant, A.T., to be honest, credible and reliable. As a witness, she was confident, articulate, fair, unflinching, consistent, and detailed. By way of brief illustration, her credibility was enhanced by her immediate and perceptive detection of flaws in the tire-rotation invoice (Ex #A) as well as in the employment forms with which she was confronted.
[21.] Her account of the events was compelling and had the ring of truth about it. For example, the complainant said she asked Mr. G.B. if he smoked to which he replied he did but he didn’t want anyone to know about it where upon he suggested they go somewhere secluded to smoke in private. I find this detail was utterly believable. It matters not that the defence evidence is that the Accused does not smoke. Her question about smoking was the springboard for an opportunistic but effective ruse by Mr. G.B. to allay and avoid any suspicion by the complainant when Mr. G.B. was looking for somewhere private to park.
[22.] Her evidence concerning post-offence communications from Mr. G.B. to her including two text messages, filed collectively as Ex. #2, and a phone call by Mr. G.B. to “hook up” provide confirmatory evidence of the allegation. The first text message read, “Hey. Where are u?” This message, sent on April 16, is connected in time and context to the situation as it was sent the day after the offence and at a time when Mr. G.B. knew A.T. was supposed to be at work.
[23.] A.T.’s loud vocal distress after being called by the Accused on April 16 to “hook up” was confirmed by her mother. Whereas A.T. said that she was out shopping when she received a call from the Accused that caused her to become stridently upset, her mother said that A.T. was actually at home with her. I believe that A.T. was at home when she got the call. To A.T.’s mother, it was a singular event whereas for A.T. it was another chapter in an ongoing upsetting experience with Mr. G.B.. The belief by A.T. that she was not at home when she received the call was an inconsequential mistake and does not detract from her overall credibility. The evidence of A.T.’s mother that her daughter was distraught bolsters A.T.’s evidence that Mr. G.B. made such a call.
[24.] The second text “Msg me when your alone I wanna to talk to you quick” was sent four days later on April 20. This second text was also both contextually and temporally connected with the situation insofar as Mr. G.B. was well aware by that date that A.T. had quit and wasn’t coming back to work. The message was also sent after his request to “hook up” with the complainant had been loudly and clearly rebuffed. It is highly relevant and telling that Mr. G.B. requested A.T. to contact him when she was alone to ensure privacy.
[25.] The post-offence confirmatory evidence of the texts and phone call coupled with A.T.’s reaction to them reinforced her credibility and reliability of her evidence that she had been the target of unwanted sexual advances by her employer.
[26.] A.T.’s evidence that she was interviewed for a job on January 20, 2011 by Mr. G.B. and not December 6, 2010 by Mr. C.J. as attested to by the defence was confirmed in several material ways. First, it is confirmed by the date written on the back of the business card she got from Mr. G.B. and filed as Ex. #1. Second, Ex. #4 indicates a start date of February 4, 2011, which was only a couple of weeks away and after the end of her school semester. Third, Ms. L.A. testified that Mr. G.B. had interviewed and hired her, too. Fourth, Mr. G.B. testified that he is the one who usually prepares the employee package of forms. A.T.’s evidence that she filled in the forms on January 20 is, like the rest of her evidence, both persuasive and compelling and I believe her. I
believe her testimony that when she filled in and signed the employment package documents, she did not see Mr. G.B. sign or date anything.
[27.] Throughout her evidence, A.T.’s was always materially consistent and she was never shaken in cross-examination on any point. I do not accept the submission that because she first told the police that she didn’t remember which hand Mr. G.B. used to touch her breast then later said it was his left hand undermines her credibility. The question of which hand was used was, in my view, a minor detail given the experience she described. Also, given her evidence that Mr. G.B. was seated to her left and had to turn towards her to touch her is perfectly consistent with not only her statement to police but her trial evidence that Mr. G.B. used his left hand.
[28.] A.T. was forthright and candid that she was occasionally late for work and was chastised for it. Her evidence that she was never formally disciplined is confirmed by the absence of any coaching forms which Mr. G.B. acknowledged are legally necessary to document all workplace related discipline issues. The lack of coaching forms and the recruitment of the complainant by Mr. G.B. to assist in his wife’s campaign including the critically important task of accurately counting and recording lawn signs fundamentally contradicts the defence position that the complainant was an unreliable and worthless employee who was on the cusp of being fired. I reject the suggestion that A.T. was motivated to make a false claim as a pre-emptive strike to being fired.
[29.] In summary, I found A.T.’s evidence highly credible and reliable and I believe all of her testimony beyond any reasonable doubt. Where the evidence of A.T. differs from that of the defence witnesses I prefer hers.
3.2: Defence Evidence
[30.] The defence evidence came from Mr. G.B., his general manager Mr. C.J., and an employee L.A.. The defence also adduced a number of documents intended to support their evidence and to undermine that of A.T. All three testified that on the day and time in question, the complainant was never alone with the Accused.
[31.] Mr. G.B. denied conducting the job interview of A.T. as she claimed. He said that it was his general manager Mr. C.J.. Mr. C.J.’s evidence and the employment documents under his hand tend, on the surface, to confirm this. Mr. C.J. denied signing the documents at a later date, but he agreed that the forms would have been filled in when A.T. was hired, which she said, and I believe, was January 20.
[32.] Mr. C.J.’s name and signature appears on four of the work documents entered as defence evidence. Mr. C.J. said that he signed all of them on December 6, 2010. Although all of the signatures are identical, the printed name of Mr. C.J. on both the Employment Information Sheet (Ex. # 4) and the Equipment Acknowledgment (Ex. # 8) is entirely in block capitals while the printed name of Mr. C.J. on both the Work Hours Agreement (Ex. # 5) and the Driver's Licence Form (Ex. # 7) is in cursive lower case. Mr. C.J. accounted for this obvious and peculiar difference by saying that when he is in hurry he uses different styles. I do not believe Mr. C.J.’s explanation. There is no suggestion, let alone evidence, that he was in a hurry when he claimed to have interviewed A.T. The writing styles of the printed names are divergent enough so as to raise a doubt in my mind as to who printed them and when they were printed.
[33.] Strangely, the Equipment Acknowledgment form (Ex. # 8) has the date of December 6, 2012, two years after the purported interview date. I reject Mr. C.J.’s evidence that this was simply an error. Mistakes in dates commonly happen, but putting in a date so far into the future casts doubt in my mind on the authenticity of the claim that the employer’s signatures were affixed in 2010.
[34.] I find it significant that photocopies and not originals of the employment documents were tendered as exhibits. The defence made an issue of the date when A.T. was interviewed and who interviewed her. In cross-examination, the complainant was confronted with copies of the employment documents in an effort to impeach her. The witness and the prosecution challenged the authenticity of certain parts of each document. The originals are in the exclusive care and control of the Accused and were readily available to him to put to A.T. Production of the originals would have made it easier for all the witnesses to answer questions about them and for the parties to examine them. A.T., for example, pointed out that all the copies were of poor quality and the handwriting ascribed to Mr. C.J. is darker than most of the document upon which his name is found. The failure to produce the originals even when it was brought to the attention of the defence that their authenticity was in dispute diminishes the weight I place on them.
[35.] A.T. testified that the tire-rotation invoice dated April 23 and marked as Ex. #A was false. She immediately pointed out that although she owns a Smart Car it is not blue as stated on the invoice. She further pointed out that the invoice does not include the VIN or plate number as required. The defence chose not to prove the authenticity of the document nor was Ms. L.A. shown the document even though she claimed to see A.T. at the shop on April 23. While the invoice was not made admissible evidence, the complainant’s unchallenged claim that it was false and the reasons she gave further reduces the weight I place on the other contested employment documents that were entered into the evidence.
[36.] For these reasons, I place no weight on the filed employment documents as a means of challenging A.T.’s evidence of who interviewed her and when.
[37.] Mr. C.J. and Mr. G.B. both testified that A.T. was an unsatisfactory employee and by April 15, 2011 was likely going to be fired in the near future. Both Mr. G.B. and Mr. C.J. agreed that behavioural issues regarding all employees and recommended remedies must be documented in a coaching form. Mr. G.B. testified that pursuant to Ontario labour laws, his knows that his business was required to create and maintain such coaching forms. Ms. L.A., who is a former manager, confirmed the need for coaching forms. Ms. L.A. testified that she observed that while A.T. was immature, the complainant performed her duties as expected and did so in a timely way. Mr. C.J. agreed that in A.T.’s case, he never saw or made any coaching forms despite him hearing about poor work reports from other employees and customers.
[38.] There was no coaching form created or produced about A.T. despite the evidence that Mr. G.B. and a store manager confronted A.T. about a workplace issue. Mr. G.B. testified that he did not recall ever warning her that she would be let go if she did not improve but merely assumed the manager warned her. This is consistent with A.T. who agreed such a meeting took place but denied being warned that her job was on the line. The absence of any documented behavourial issues is consistent with A.T.’s evidence that any problems with her work were minor and that she was not told that she was going to be let go.
[39.] I do not believe that if A.T. was such a poor employee as the defence made out that she would have been enlisted by Mr. G.B. to help him with important political campaign work including sign counting. The fact is that Mr. G.B. recruited her and entrusted her with sign counting, data entry and graphic design for his wife’s political campaign. Ms. L.A. confirmed that she was aware that A.T. was working on the campaign both in the office and by counting signs. Mr. G.B.’s action of relying on A.T. to help him with the political work contradicts oral evidence that he believed she was an unreliable person due to her poor work. I find that Mr. G.B. would not assign A.T with tasks of such importance to his wife’s political campaign if he was about to sack her for incompetence.
[40.] Mr. G.B. testified that on April 16 he sent a text to A.T. asking where she was, but denied calling her later that same day to “hook up” as A.T. said he did. This text was certainly apropos because the complainant did, in fact, not come to work that day. The Accused testified that the text, although squarely and completely fitting the situation, was intended for someone else whose name also began with A. With respect to the phone call, it was A.T.’s evidence that the Accused called her from the office to invite her to get together with him for twenty minutes or so. I find that Mr. G.B.’s cell phone records (Ex. #9) prove only that he did not call the complainant from his cell phone, which is consistent with her evidence that he said he was calling her from work. Mr. G.B. also admitted that he sent a second message to A.T. on April 20. This text was in essence an urgent request to communicate with him in a private setting. Mr. G.B.’s evidence was that this second message, like the first one, was meant for someone else but was accidentally sent to A.T.
[41.] When asked why he had A.T.’s personal cell number in his phone when she was only one of seventy-plus employees, Mr. G.B. responded that he has the numbers of his general manager, all his store managers, and his “main cashier” in his phone. He testified that A.T. was his “main cashier.” He later modified that evidence to say that she was the main cashier at one store only. Yet he did not ever say that he had the phone numbers for the cashiers at any other location. The tone of his evidence was to imply that A.T.’s role was as important as that of a manager of a store to merit inclusion in his phone for business purposes. I do not believe that A.T. was given such lofty status within the organization. She was a teenager who had only worked for the Accused’s company at one location as an entry-level receptionist and cashier for slightly more than a couple of months.
[42.] Neither the complainant nor Mr. C.J. described A.T. as the main cashier so as to justify any business reason why the Accused would have her number in his phone in the first place. Mr. C.J.’s evidence and that of Ms. L.A. was that at the store A.T. worked at they didn’t always have need for a full time cashier, thereby reducing the importance of A.T.’s position. Furthermore, A.T. had testified that she found it weird that Mr. G.B. should have her phone number on his phone. I agree with her. I reject Mr. G.B.’s claim that he had her number for business reasons. This feeble concoction profoundly undermines Mr. G.B.’s overall credibility because I find his was dishonest in his explanation for having A.T.’s cell phone number in his phone. The only possible reason he had her number is that he had it for personal reasons and the texts and the “hook up” phone call are absolutely consistent with this. I disbelieve that Mr. G.B. sent the texts to A.T. by mistake. I disbelieve that he did not call her to “hook up”. I find that he delivered the texts to A.T. as the intended recipient and the called her on April 16 to propose a rendezvous.
[43.] Mr. G.B. testified that he was solely responsible for doing the company’s payroll. He explicitly stated that Mr. C.J. had no role other than to double check Mr. G.B.’s figures. This evidence is directly contradicted by Mr. C.J. when he testified that he was responsible for payroll. The fact that neither of these two witnesses could agree on something as basic as which of them performed a routine and regular business practice gave me great pause in finding them reliable witnesses.
[44.] Mr. C.J. testified that on April 15 he asked Mr. G.B. to take someone with them to make the labour-intensive task of counting signs go faster so he could leave early. He said that he wanted to leave work early so he could do the payroll that evening because he did not want it to interfere with his plans for the weekend. In his evidence-in-chief, Mr. G.B. gave similar evidence. However, in cross-examination Mr. G.B. contradicted this by testifying that he took a third person of his own accord to increase the accuracy of the counting, not to reduce time. A related contradiction concerning the events of April 15 is that Mr. G.B. said that Mr. C.J. was not busy that day whereas Mr. C.J. testified that he was very busy due to his desire to complete the payroll and he told Mr. G.B. so.
[45.] Mr. C.J. and Mr. G.B. also contradicted one another when Mr. C.J. testified that he had accompanied Mr. G.B. several times to count lawn signs before April 15 whereas Mr. G.B. testified that prior to April 15 he had always counted signs alone.
[46.] The number and nature of contradictions between Mr. G.B.’s and Mr. C.J.’s evidence contributed greatly to the overall unreliability of their evidence.
[47.] I do not accept Mr. G.B.’s account of the events of April 15, 2011 nor does his evidence give rise to a reasonable doubt, either standing alone or in combination with the other evidence. Mr. G.B.’s evidence on the central issues and many of the secondary issues in the case is simply not credible and I completely reject it. When assessing Mr. G.B.’s evidence I also take into account that he has a prior criminal record for crimes of dishonesty.
[48.] I have found that the evidence of Mr. C.J.’s and Mr. G.B. contradicted each other on several material points. The evidence of Mr. C.J. also contradicts that of A.T. whom I have already stated I believe completely on all the important issues. I do not believe Mr. C.J. that he was present with A.T. and Mr. G.B. in the Accused’s car counting signs on April 15 nor does his evidence raise any reasonable doubt in my mind.
[49.] As for Ms. L.A., her evidence was identical to that of Mr. C.J. and Mr. G.B. when it came to who occupied Mr. G.B.’s car on April 15. Since I have already found that the evidence of both Mr. G.B. and Mr. C.J. is not true in this regard, I find that Ms. L.A.’s evidence was also untrue about the central issue. Ms. L.A.’s evidence was irretrievably tainted by her evidence of bias caused by her unwavering loyalty to the Accused and her stated belief that Mr. G.B. could not do anything wrong.
[50.] Ms. L.A. testified that she saw A.T. come in to the shop on April 23 for a tire rotation. Given that I find she was dishonest about the main point in dispute, and given that I accept A.T.’s evidence that the purported invoice was false, I do not find that any of Ms. L.A.’s evidence that conflicts with that of A.T. raises any reasonable doubt.
4.0: CONCLUSION
[51.] For all of foregoing reasons, I reject the defence evidence on the core issues in this case. Nor does any of the defence evidence leave me in any reasonable doubt about the guilt of the Accused. On the totality of the evidence that I do accept, including the strong, persuasive, and materially confirmed evidence of A.T., I find as fact that on April 15, 2011, A.T. and G.B. went alone in his car to count political lawn signs. Using the pretext of wanting to smoke a cigarette far from prying eyes, Mr. G.B. drove the unsuspecting complainant to a quiet rural road in Caledon whereupon he kissed her lips and touched her breasts without her consent.
[52.] I find Mr. G.B. guilty of sexual assault.
ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice