R. v. Young Min Von Seefried, 2016

Court Information

Information No.: 4911-998-15-01237

Date: November 17, 2016

Ontario Court of Justice

Location: Newmarket, Ontario

Parties

Her Majesty the Queen

v.

Young Min Von Seefried

Before the Court

The Honourable Mr. Justice M. Felix

on November 17, 2016 at Newmarket, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA PURSUANT TO AN ORDER OF JUSTICE M. FELIX, ONTARIO COURT OF JUSTICE, DATED AUGUST 22, 2016

Appearances

J. Nicol – Counsel for the Crown

M. Flanagan – Counsel for the Crown

W. MacKenzie – Counsel for Young Min Von Seefried

Table of Contents

I. Introduction II. Organization of this Judgment III. Summary: Evidence of the Complainant (X.X.) IV. Summary: Evidence of the Defendant V. Summary: Evidence of the Boyfriend (J.F.) VI. Summary: Evidence of a Friend of the Complainant (W.L.) VII. Credibility and Reliability of the Complainant VIII. Conclusion: Complainant's Evidence IX. Defence Position X. Credibility and Reliability of the Defendant XI. Conclusion: Defendant's Evidence XII. Disposition of the Trial

Reasons for Judgment

FELIX, J.: (Orally)

I. Introduction

After socializing at a Karaoke Bar, X.X. (the complainant) and J.F. (her boyfriend) left to return home in the early morning hours of January 4th, 2015.

The complainant was a passenger in a motor vehicle driven by her boyfriend.

Moments after leaving the Karaoke bar the defendant, a police officer, stopped their vehicle on Woodbine Avenue in Markham, Ontario. The defendant says the purposes of the traffic stop included a Highway Traffic Act investigation, drinking and driving investigation, domestic related concerns, and vice-related matters.

During this traffic stop the defendant asked the complainant to get out of the vehicle and attend the rear passenger side of his SUV police vehicle. He had her sit inside the rear passenger side of the vehicle.

The complainant testified that the defendant sexually assaulted her in the rear of the SUV police vehicle. She described him kissing her on the lips, touching her breast over top of her bra but underneath her clothing, and touching her vagina area. She further described the defendant producing his erect penis and inviting her to taste it.

The defendant testified and denied the allegation.

Having considered all of the evidence in this case and the able submissions of counsel at trial, I am satisfied beyond a reasonable doubt that the defendant committed the offence of sexual assault.

The defendant is found guilty.

II. Organization of this Judgment

At the outset, there are several matters that are not controversial.

There is no question that the defendant and the complainant had an interaction in the rear of his SUV police vehicle in the early morning hours of January the 4th, 2015.

There is similarly no dispute that the defendant and the complainant were positioned in the rear passenger side of his SUV police vehicle for a short period of time.

The focus is on what happened in the rear passenger seat.

The complainant's account describes three separate incidents of sexual touching committed by the defendant. If that recount is accepted, there can be no question that the actus reus and the mens rea for sexual assault have been established beyond a reasonable doubt.

The defendant denies that any physical contact occurred. Thus, I need not concern myself with issues such as consent or mistaken belief in consent - issues often litigated in these matters.

This case requires a determination of the credibility and reliability of the main witnesses - the defendant and the complainant. That being said it cannot be viewed as a contest between the defendant and the complainant - the criminal law does not permit such credibility contests.

This case requires a determined focus on the presumption of innocence and the criminal burden of proof.

I will begin with a brief summary of the evidence from the viva voce witnesses so that the circumstances are clear. I do not propose to recount every single detail provided by each witness. Then I will address the credibility and reliability of the complainant. Finally, I will address the credibility and reliability of the defendant. In addition, where needed, I will summarize and include admissions and other evidence.

III. Summary: Evidence of the Complainant (X.X.)

The complainant is a 23 year-old foreign university student from China who had been in Canada for approximately six years.

During the evening hours of January 3rd, 2015 she was socializing with her boyfriend and friends at a restaurant, a birthday party, in a Karaoke bar. At the end of the evening the complainant planned to go to have a late dinner with her boyfriend and a friend named W.L. The plan was that W.L. would drive herself. The complainant and her boyfriend would travel together.

The complainant and her boyfriend left the Karaoke bar between 4:00 a.m. and 4:30 a.m. in the morning. Her boyfriend was driving.

Shortly after leaving the bar the defendant stopped the complainant's vehicle on Woodbine Avenue in Markham, Ontario. The defendant questioned the complainant with respect to alcohol consumption. He then asked the complainant to get out of the car but did not tell her why. This was the first time that the complainant had interacted with a police officer in Canada. She complied with his request. In her mind she thought that the defendant had the authority to check for alcohol consumption even though she was a passenger and she thought he might want to test her.

She followed the defendant to his SUV police vehicle. The defendant asked her to get in the passenger-side rear of his vehicle. The defendant was positioned behind the door which remained open.

The complainant was fully inside the interior of the vehicle - but close to the door. Her legs were within the interior of the vehicle but she was facing the defendant who was positioned towards her.

The defendant questioned her. He asked her name and for her telephone number. He spoke with the complainant about other subjects. He asked if she used social media software and she believes that he referenced software called WhatsApp. The complainant asked the defendant if he was Chinese and he informed her that he was Korean. She told him that Chinese people only use a program called WeChat and he was not familiar with this software.

The complainant was feeling uneasy with the circumstances, when the defendant asked her if she could go home with him. The complainant knew that obviously this was not right. She was very frightened by this part of the conversation. So she lied and told the defendant that her boyfriend was transporting her to her parent's residence.

Then the defendant told her that she was very sexy and pretty. He kissed her and stuck his tongue in her mouth. At the same time he slipped his hand under her clothing including her bra and touched her breast.

The complainant says that she went blank. She then began to use her elbow and her arms to resist his touching.

Then his hand went down the waistband of her shorts, under her panties, and touched her vagina area - specifically her clitoris. She withdrew her body further into the interior of the cruiser and the defendant backed off.

It is at this point she noticed that the defendant's penis was exposed. His pants were not down and she believed that his penis was exposed through the fly of his pants. The defendant took her hand and placed it on his erect penis and asked her "How do you feel about it" which meant to her that he was suggesting to her that he was well-endowed.

The defendant then asked her if she wanted to taste it? She responded no. He did not ejaculate.

She was able to remove her hand without using much force and she told the defendant - "Let me go. My parents are waiting for me at home".

The defendant asked her a second time whether she would go home with him. She reasoned that he did not yet have the intention to let her go. She promised him: "Next time. Just let me go this time".

The defendant told her she could go. She went directly back to her boyfriend's car and sat in the passenger seat.

The defendant came back to the car and had a discussion with her boyfriend about updating the colour of his car with "Ontario Service" and indicated that he would not give him a ticket.

The defendant then came over to her side of the car and said directed to both the complainant and her boyfriend: "You're a lucky guy. Your girlfriend is so pretty".

Shortly thereafter the complainant and her boyfriend were permitted to leave the scene.

IV. Summary: Evidence of the Defendant

The defendant is 34 years old, married and has two small children. He is a police officer employed by the York Regional Police Service for the past ten years. For that entire time he has patrolled the Markham area with the rank of First Class Constable. This area has a large population of persons from countries in Asia. It may be relevant in this trial that while the gentleman is ethnically of Asian descent, he is not fluent in the Korean language, Cantonese, or Mandarin.

The defendant testified it was cold and raining on the night in question. He was working a night shift from 6:00 p.m. to 6:00 a.m. During his shift he performed general patrol duties including pro-active policing traffic stops, enforcing traffic rules, and responding to radio calls. He was mainly enforcing the Highway Traffic Act that shift.

The defendant provided evidence concerning the workings of his dash camera and interior camera in the vehicle. He also testified as to his practices in this regard.

The defendant was patrolling in the area of Woodbine Avenue in Markham at around 4:00 a.m. This area has a lot of Karaoke bars and would be a targeted area for the police service concerning sobriety checks. I heard that last call is usually 2:00 a.m. or 3:00 a.m. and employees leave later. Given the proximity to the highway there is still traffic even though is the early hours of the morning.

At 4:28 a.m. the defendant initiated a traffic stop and entered the licence plate of that vehicle - the vehicle driven by the complainant's boyfriend. He says that he parked approximately ten feet behind the vehicle.

He recalled having seen the car parked earlier outside of a Karaoke bar and took note of the colour because it was unusual. So when he saw the vehicle being operated he decided to investigate. When he ran the vehicle he was able to confirm that the colour of the vehicle had been changed from that which was registered with the Ministry of Transportation.

The defendant approached the driver's side of the vehicle and communicated with his dispatch at approximately 4:32 a.m. He spoke to the driver - the complainant's boyfriend - and advised of the reason for the stop. While interacting with the driver he noted a strong odour of alcohol. He questioned the boyfriend concerning consumption. He was informed by the boyfriend that he had not consumed any alcohol. He then proceeded to question the complainant and received information that she had consumed alcohol.

The defendant testified that during this conversation with the occupants and a conversation concerning their relationship he received inconsistent information about their relationship. Given this inconsistency and his observations of their demeanor he was concerned that there was a domestic-related issue or a prostitution-related issue. He testified that he was generally aware that some customers at Karaoke bars engaged females who worked there in the sex-trade business.

The defendant testified that he decided to have a conversation with the complainant for the purpose of ensuring her safety and wellbeing. He asked for her driver's licence and asked her to get out of the vehicle so that he could talk to her out of earshot of the boyfriend. He says that she voluntarily got out of the vehicle. He then invited her back to his SUV police vehicle given the inclement weather and her clothing (in particular she was wearing shorts). He walked her to his cruiser. She sat in the rear of the cruiser passenger side. The door remained open. The interior light of the cruiser was on.

When the complainant attended his vehicle the defendant described an immediate transformation of her mood and demeanour.

The defendant testified that the complainant became much happier to the point of being flirtatious with him.

The defendant testified that the complainant was more cheerful and "chatty" than when she was in her boyfriend's car.

Finally, the defendant testified that the complainant winked at him.

While the complainant did not stumble or slur her words the defendant noted a strong odour of alcohol and he reasoned that this explained her change in demeanour and behaviour.

The defendant went on to testify and describe his efforts to "build rapport" with the complainant.

He was trying to let her know that he was just checking to make sure she was "okay". He tried to talk about different things. They had a discussion about the Karaoke club. They had a discussion about the holidays, as this was a readily available topic to talk about.

The defendant described his efforts to inquire into the relationship between the boyfriend and the complainant to make sure that "the connection" was good. He did not recall a conversation about his place of origin. He did not recall a conversation about social media or Chinese social media applications.

The defendant testified that he asked the complainant for her phone number. He also asked her if he could call her later on just to make sure that she got home safely. He says that she voluntarily provided this information and he wrote it down in the back of his notebook.

Once the defendant determined that everything was okay and that the complainant and her boyfriend had a "decent connection" he let her go back to her vehicle.

He told her that he would return their documents in a moment after he checked on them. He then sat in his vehicle to check on the driver's licenses and names of both the boyfriend and the complainant while the complainant walked back to her vehicle.

Between 4:36 a.m. and 4:41 a.m. he returned to the boyfriend's side of the vehicle and provided the documents to the boyfriend and also provided him with both driver's licenses. He gave him a warning with respect to the registration change.

V. Summary: Evidence of the Boyfriend (J.F.)

The complainant's boyfriend was called as the second witness for the Crown. He is 21 year-old foreign university student from China studying mathematics.

He did not possess a good memory of the early part of the evening but did confirm that he spent some time with his girlfriend and they went to a restaurant. After the restaurant he took her to a friend's birthday party. After the birthday party he picked her up and they went to a bar where he was present with the complainant for approximately two hours. At the end of the evening they planned to go to a late dinner in the Yonge and Finch area. He testified that he does not consume alcohol.

This witness confirmed that in the early hours of the morning the defendant pulled him over on Woodbine Avenue shortly after leaving the Karaoke bar. He said the officer did not tell him the reason for pulling him over. The officer asked him questions about alcohol consumption and this witness told the defendant that he had consumed no alcohol. The officer then asked the complainant if she had consumed alcohol and the complainant told the defendant: "maybe two or three bottles of beer". The officer asked the complainant a second time if she had consumed alcohol. The complainant responded a second time. The defendant then went to the passenger side of the vehicle and asked the complainant for her driver's licence. He then asked the complainant to get out of the car but did not provide the rationale for this request.

This witness was looking back at the SUV police cruiser from time to time via the rear view mirror, but he testified that he could not see anything because of the rain.

He was however able to see that the passenger side rear door was open. But he could not see the defendant or his girlfriend.

This witness surmised that the officer was giving his girlfriend an alcohol test.

Approximately five to ten minutes later the complainant returned to the vehicle. She was frightened and told him "Do you believe it? The Police Officer said he likes me and he kissed me". The defendant returned provided both driver's licences back to the witness and then the defendant said: "You're lucky. Your girlfriend is so pretty".

They then had a discussion about the colour change on his vehicle.

There were not many cars and no pedestrians in the area at the time.

After this witness drove away his girlfriend started crying and kept saying to him over and over again: "He's a police officer. How could he do that to me?"

This witness explained that he did not receive the full details of what happened in the car from the complainant. He testified that he was very upset because this was done to his girlfriend literally in his presence and he could not do anything because the defendant was a police officer.

They drove the complainant to meet a friend named W.L. (this is the friend of the complainant's) at the restaurant to seek advice. While at the restaurant this witness testified that the complainant cried hard. The complainant was debating whether to report this incident to the police. Eventually she called 9-1-1 and was referred to a local police station.

This witness confirmed that he attended a police station he and the complainant met with Sergeant Cheung. This officer said he spoke Cantonese and Mandarin but his Mandarin was not very good. As a result he spoke to them in English with some Mandarin.

VI. Summary: Evidence of a Friend of the Complainant (W.L.)

This witness was a 33 year-old friend of the complainant - the person who the complainant and her boyfriend met in the restaurant at Yonge and Finch.

This witness testified that she called the complainant twice while waiting for her to attend the restaurant.

Then the complainant called back and was crying and sounded sad. When the complainant arrived at the restaurant she was crying and upset. These two friends had cigarettes outside and discussed the circumstances involving the defendant.

This witness confirmed that the complainant asked her what she should do - whether she should call the police. This witness specifically indicated that she did not advise the complainant whether she should or should not call the police.

VII. Credibility and Reliability of the Complainant

The defendant submits that the complainant is incredible and unreliable.

I do not agree.

I will explain my findings by referencing the following issues and topics:

• The Allegation of Sexual Assault
• Alcohol Consumption
• Interpretation and Language Related Issues
• Disclosure of Sexual Assault
• Inconsistencies and Deficient Detail at Trial
• Collusion
• Contact with the Police
• Motive
• Post-Event Emotional State

A. The Allegation of Sexual Assault

As I indicated earlier in this judgment, if the complainant's evidence is accepted, the actus reus and mens rea for sexual assault has been established.

The defendant's position is that no physical contact occurred whatsoever.

Defence counsel submits that focused on the allegation of sexual assault there are aspects of the complainant's evidence that detract from her credibility and reliability. He argues that the complainant was inconsistent in describing the touching in the area of her vagina. In her statement to the S.I.U. the complainant said that the defendant touched her "front". At trial the complainant said that the defendant touched her "clitoris". I accept the complainant's explanation for this change in terminology. At the time of the S.I.U. statement the complainant did not have a Mandarin-speaking interpreter. In her mind"front" was where the clitoris was located proximate to her vagina area. At trial, with the benefit of the Mandarin-speaking interpreter provided by the Court she used the Mandarin word meaning "clitoris". More important than nomenclature was the point that the complainant was trying to articulate - the defendant did not digitally penetrate her. She was trying to make clear that the defendant did not put his finger inside of the vaginal canal. This was made abundantly clear during re-examination when pages 40 through 50 of her S.I.U. statement was adopted by the witness. It also imbues to her credibility and reliability that she was careful to make that distinction. It is a distinction that might be found to be less aggravating in terms of the intrusive nature of the sexual assault.

The defendant argues that the complainant was inconsistent with respect to whether she was wearing a vest in addition to the other clothing she wore. It is clear that "vest" meant "tank top" to the complainant. Besides her clothing was photographed and filed as an exhibit. Nothing turns on this distinction.

The defendant argues that the complainant could not provide a complete description of the steps taken by the defendant to expose his penis and to put his penis away during the sexual assault incident. The complainant explained that from her positioning in the rear of the cruiser she did not look down her body to his lower body area. She did relate that the defendant did not drop his pants to the ground. She testified that his penis was protruding from his fly area.

The complainant was being touched inappropriately by a police officer. This was obviously an extremely traumatic event. In the context of these circumstances I was not troubled by her inability to describe in minute detail the production or retraction of his penis.

What is important is her detailed account of the defendant causing her to touch his penis with her hand. His penis was erect. She was clear that he did not ejaculate. She recalled his statement at the time that he asked her if she wanted to taste it. What is also important is that the complainant was balanced and fair in this testimony as well. She testified that she was able to remove her hand with minimal force as she implored him to let her go and sought to encourage him in this regard by falsely telling him that her parents were waiting for her.

On the issue of touching her vagina area and the touching of the defendant's penis it is telling that the complainant did not exaggerate these circumstances. This is an area of the evidence peculiar to her. Only she could describe the extent of touching in her vagina area. Only she could tell me that the defendant did not use a great amount of force to compel her to continue to touch his penis. She was fair and balanced in my respectful view. And certainly not inconsistent.

B. Alcohol Consumption

Counsel for the defendant submits that the complainant was inconsistent with respect to her consumption of alcohol and that she minimized her alcohol consumption. He further argued that the complainant provided additional detail such as the type and size of alcohol for the first time at trial. Also he points out that she volunteered that she had been drinking spontaneously. Finally, he submitted that the 9-1-1 call recording bears out that the complainant was intoxicated.

First of all, with respect to consumption, the complainant testified that she had two beers. Her boyfriend testified that she had either two or three bottles of beer. Her friend W.L. testified that she did not smell alcohol on the breath of the complainant, but I must recognize that she and the complainant were smoking cigarettes outside of the restaurant.

Two police officers - a front desk officer and Sergeant Cheung (Toronto Police Service) noted an odour of alcohol when they interacted with the complainant. This was perhaps two hours after the timeframe during which the complainant testified she had consumed alcohol.

I cannot concretely resolve the issue of whether the complainant had two, three or even more beers. But in the end it does not matter for several reasons. First, I do not find that the complainant deliberately minimized her alcohol consumption with a view to enhancing her credibility. She told everyone that she spoke to that she had consumed alcohol as pointed out by defence counsel. This is a peculiar way to minimize the issue of alcohol consumption. Second, both the complainant and the boyfriend laboured under the mistake of law that the defendant had some right to investigate a passenger's alcohol consumption in these circumstances. This should be factored in when I consider the evidence of the complainant volunteering information about her consumption. In context, she is volunteering information that actually helps the defendant - she did consume alcohol - in circumstances where she believed (erroneously) that he had the right to investigate her consumption as a passenger in a motor vehicle.

Third, the complainant testified that she does not have a habit of drinking alcohol. Her boyfriend did not drink alcohol. It is not as if the complainant and her boyfriend were out for an evening focused on the consumption of alcohol. She says she drank two Coors Light beers between 2:30 a.m. and 4:00 a.m. at a nightclub. I am not shocked that there remained an odour of alcohol at approximately 6:30 a.m. when she interacted with the two police officers.

Fourth, with respect to the potential impact of the consumption of alcohol on the complainant, the evidentiary record is silent. I do not know if two beers or three beers renders her intoxicated. I have no evidence of her tolerance level. There were no other additional indicia of alcohol consumption (e.g. balance, motor skills) that police officers are attuned to note. To the degree that I should have any confidence in Sergeant Cheung's approach to the investigation he noted that the complainant had an odour of an alcoholic beverage on her breath, but that she was not intoxicated. As Crown Attorney's and Criminal Lawyers know, an odour of alcohol does not provide evidence of consumption or level of intoxication.

I do not think it is significant that the complainant identified the type of beer and the size of the bottles for the first time at trial. She testified that she described the bottles as small bottles for fear that they might come in larger sizes. I note that unlike at trial, the complainant did not have a Mandarin speaking interpreter when she provided her S.I.U. statement.

I have listened to the 9-1-1 call during proceedings and while I considered my judgment in this case. I do not conclude that it bears witness to any level of intoxication on the part of the complainant. The after the fact emotional state of the complainant is plainly apparent during that call - she was very emotional, very upset, perhaps even mad, scared, frustrated. Without intending any disrespect to the complainant she spoke in heavily accented broken English. I could not reasonably conclude that she was intoxicated based on my review of the 9-1-1 call and I reviewed it several times.

The odour of alcohol plus the admissions by the complainant confirm that she had consumed alcohol. That being said the consumption of alcohol is not a crucial issue in this case. I find that the consumption of alcohol did not impact the reliability of the complainant's evidence. She was able to provide a detailed recount of the actions of the defendant in the back of the police SUV cruiser.

C. Interpretation and Language-Related Issues

The defendant argues that the complainant materially omitted some information when she spoke with Sergeant Cheung. In fact, it is admitted by both parties that Sergeant Cheung did not record or recall the complainant telling him that the defendant put his hands up her top.

Sergeant Cheung did not testify in this trial. By way of admission I received evidence that Sergeant Cheung speaks Mandarin, Cantonese and "Chinese" (whatever language that is). It was also admitted that Sergeant Cheung could not remember all of the specifics but he assumed that if the complainant had spoken Mandarin he would have spoken Mandarin to her. The complainant testified and says she spoke in English and that Sergeant Cheung's Mandarin was not good. The complainant's boyfriend testified and said that Sergeant Cheung spoke some Mandarin but not very well. He primarily spoke in English.

To the extent there is mild conflict amongst the witnesses on this issue I cannot resolve it concretely. This is because, on the record provided to me by the parties (and I emphasize on the record provided to me by the parties in this prosecution) Sergeant Cheung's investigative approach left much to be desired. He failed to record the interview. He interviewed the complainant and the boyfriend together thereby potentially tainting witnesses. By not audio or video taping the interview Sergeant Cheung has prevented the Court from having access to this part of the investigation.

In submissions, frankly both counsel properly acknowledged that this was concerning. I too am extremely concerned about those circumstances. While I am not here to judge the conduct of Sergeant Cheung, I must address his significant impact in this trial.

I have no choice, on the record before me by the parties, but to recognize a seriously negligent or uninformed approach to basic fundamental procedures concerning police investigations and the evidence of witnesses. This is particularly unconscionable given the allegation being made - that an on-duty uniformed police officer had sexually assaulted a member of the community.

Given my lack of confidence in the approach of Sergeant Cheung I regard his evidence that he does not recall the complainant reporting that she was touched in the breast area with a measure of caution. I do not know how Sergeant Cheung could confidently state what the complainant said and what she did not say given his position that he did not recall all of the details. The complainant testified that she did in fact relate this detail to Sergeant Cheung. Given the record was not preserved for the Court an objective analysis is unavailable when it should have been.

In the end, I resolve this issue by noting that this was clearly not a formal statement. Sergeant Cheung let the complainant discuss the events but he did not probe her with respect to the allegations. In that sense it was not a back and forth type statement, but more akin to a "pure version" police statement in policing parlance. It was obviously not a serious investigative interview. I tend to accept the evidence of the complainant and the boyfriend that if Sergeant Cheung spoke Mandarin he did not do so very well and that the interview was mostly conducted in English. In these circumstances, even if the complainant omitted the detail about touching of her breast, and I am not sure that she did, it is of no consequence given the provision of her detailed S.I.U. statement shortly thereafter.

It is unclear to me if defence counsel implied some criticism of the complainant's use of an interpreter at trial, when she demonstrated some ability in English. If that submission is in play I would simply observe that am not permitted to make adverse credibility findings simply because the complainant required the services of an interpreter at trial. It is not unusual for witnesses to rely on an interpreter for court proceedings even if they have some ability in English. It is not unusual for witnesses to require assistance because of the use of legal terms or because of the precise nature of the questions posed in direct or cross-examination in a trial.

In my respectful view there was nothing untoward about the complainant's use of an interpreter in this trial.

D. Disclosure of the Sexual Assault

The defendant argues that the complainant provided incremental disclosure with each opportunity provided. She augmented her description of the events as time went on. As such it is submitted that I should be concerned about the progression and the escalation of the disclosure.

First of all, in a general sense, I must recognize that complainants are not required to react in any particular manner. There is no requirement that a complainant provide a seamless comprehensive account to everyone they meet. Certainly some consideration of the context of the situation and the emotional state of the complainant is in order. That being said if I did have a concern about the pattern associated with disclosure it could obviously impact my assessment of the complainant's reliability and credibility.

I did not find there to be any reliability or credibility concerns founded on this submission.

I find that the complainant did not provide a fulsome recount to her boyfriend when she returned to the car and I accept that she was still processing what happened. The defendant was still at the scene. She testified that she wanted to wait until they were away from the defendant. After he had let them go. When she commenced the recount to her boyfriend it is clear that it was not a fulsome account of what happened. With just the minimal information provided he became angry and silent. There was no further expansion of the allegations to her boyfriend at this time I infer given his reaction. It makes sense then that the complainant was then seeking assistance from her friends via her cell phone.

During the 9-1-1 call the complainant did not provide every detail of the alleged sexual assault. She did, however, in speaking with the operator:

• Say that the police officer took her to his car and "...wants to do something to me";
• Ask for guidance on who she should call if the police wanted to do something harmful to her;
• Say that the police officer kissed her and touched her;
• Say that the police officer took her to his car and placed her in the back seat;
• Say that the police officer said that she was sexy;
• Say that she was afraid; and,
• Advise that this happened ten minutes ago.

The complainant was evidently frustrated with the 9-1-1 operator's initial approach. It is also evident that the complainant was very upset. The 9-1-1 call was not a formal interview.

I did not hear the details of the conversation that the complainant had with her friend W.L. at the restaurant or outside of the restaurant as well. I know that there was a discussion. I do have evidence of her demeanour. She was very upset. She ate very little. The complainant testified that she spent some time crying on the bathroom floor.

I have analyzed the circumstances of the complainant's disclosure to Sergeant Cheung a moment ago in this judgment.

In summary, the complainant was grappling with the magnitude that a police officer had done this to her. She grappled with the concern of retribution by the officer given that she was aware that he had obtained her driver's licence, her address, her phone number, and her full name. It was the first time the complainant encountered the criminal justice system. She had never engaged the services of the police before.

I do not find that the sequence of disclosure denotes an evolution or increasingly expansive recount of the allegations.

Again I emphasize that I am mindful that there is no proscribed or particular manner in which a complainant must respond. I am not concerned that the complainant failed to describe in minute detail the precise actions of the defendant to every person she met or interacted with.

E. Inconsistencies and Deficient Detail at Trial

The defendant argues that there were more inconsistencies at trial.

At trial for the first time the complainant provided the name brand of the beer and particularized the size of the bottles. I do not know if she was asked to specify the type of beer or bottle size when she provided her statement to the S.I.U. I am not troubled by the addition of these details.

I have already analyzed her use of the word "clitoris" earlier in this judgment.

The complainant and her boyfriend related a certain comment made by the defendant when he returned to their car. The complainant says it was from her side of the vehicle. The boyfriend says the defendant made the comment was from his side if the vehicle. What is important is not what side of the vehicle the defendant spoke from, what is important is that they both say he made the certain comment in substantially the same terms.

The complainant and her boyfriend were inconsistent concerning the manner in which the driver's licences were returned. What is important is that the defendant secured the complainant's driver's licence on a traffic stop concerning a colour change on a motor vehicle. It is also important that he took her cell phone number. It is further increasingly important that he wrote down her cell phone number in his scratch notes. What is not important is through which window he returned the driver's licences.

The defendant argues that the complainant could not recount the identity of persons she contacted in the aftermath of the sexual assault. I am not concerned about this submission. The complainant testified that she contacted 9-1-1, she spoke to her friend W.L., and tried contacting another unidentified friend. Her cell phone records were evidently available. If there was some probative value in determining the identity of persons she spoke to with respect to disclosure of these persons that could have been requested. Further, I think I may infer that if it is more likely than not that these witnesses would have been available for demeanour evidence given the remote possibility of an assertion of recent fabrication. In this particular trial that is exactly what happened the defence did not allege recent fabrication.

The defendant argues that the complainant said she sought guidance from her friend W.L. with respect to the issue of contacting the police. The complainant's friend W.L. testified she did not provide any advice as to whether to call the police or not. What she did say is that she spent time with the complainant discussing the incident and she recounted the demeanour of the complainant. It is clear that the complainant sought advice from several friends as to what to do. She did not know how to handle this situation. She was aware that the defendant had her address and phone number and name. She was understandably concerned about potential reprisals.

The important point is that her friend W.L. was, from the perspective of the complainant, an older woman with more experience and she provided support to the complainant. This minor inconsistency was of no moment.

F. Collusion

There are two related areas of the record that give rise to considerations surrounding collusion or potential tainting of the evidence: (1) the interaction between the complainant and her boyfriend; and (2) the investigative approach of Sergeant Cheung.

The boyfriend was exposed to the complainant's evidence when she returned to the car after the traffic stop due to her 9-1-1 call. He was also exposed during her interaction with W.L. at the restaurant and during their mutual "interview" with Sergeant Cheung.

I did not find there to be collusive aspects associated with the evidence of the complainant and her boyfriend. First of all, the boyfriend's evidence does not address the sexual assault incident in the rear of the S.U.V. police cruiser. Any opportunity for him to benefit from the complainant's recount of the events was thereby nullified concerning the core circumstances of the sexual assault. If I was to suppose that he and the complainant colluded I might expect him to support her version of the vents (e.g. by testifying that he observed some physical interaction or a struggle even in the police vehicle). He testified that he could not see the events given the distance, the weather and the vehicle.

By the time of the trial the complainant and her boyfriend were no longer in a relationship.

Finally, I should note having just recounted some minor inconsistencies in their evidence earlier in this judgment, is not as if the complainant's testimony and the boyfriend's testimony mirrored each other in the evidence exactly.

G. Contact with the Police

The complainant did not go directly to the police station after she telephoned 9-1-1. She went to meet her friend W.L. as previously planned at a restaurant at Yonge and Finch. I have already addressed the circumstances of that contact earlier in this judgment.

The delay in attending the police station was perhaps an hour and a half to two hours. The complainant had already reported the incident via her 9-1-1 call. I am not troubled by the reaction of the complainant and her efforts to obtain advice given the circumstance.

The delay in attending the police station was insignificant.

H. Motive

Both the complainant and her boyfriend are young foreign national students from China studying in Canada. They do not have criminal records. The complainant said this was her first interaction with a police officer in Canada.

I have not heard any evidence, for example police information by way of C.P.I.C. or C.N.I., concerning a police interest in the registered owner of the vehicle that was stopped, the boyfriend in particular, or the complainant.

I will confess and admit that I listened intently in this trial and scoured the record to divine any basis to support an assertion that the complainant has fabricated this evidence of the defendant's actions. I recognize the defence does not have to prove a motive to fabricate on the part of the complainant. The defence position is that the complainant has made up these allegations. When I consider that position I simply note that there is no room for a submission that the complainant misapprehended the physical contact or that there was some mis-communicated consent for example. The simple bald submission is that she is not telling the truth. That she has fabricated this story for some reason. When I assess this defence asserted by the defendant I simply observe that there is no apparent motive on the part of the complainant to fabricate: R. v. LeBrocq, 2011 ONCA 405 at paras. 18 - 19.

That being said, I must be cautious and recognize that simply because there is no evidence of a motive to fabricate does not mean that there is in fact no motive to fabricate and therefore the complainant is telling me the truth: R. v. L.L., 2009 ONCA 413 at para. 44.

I. Post Event Emotional State

The complainant called 9-1-1 mere minutes after she and her boyfriend left the scene.

As I have indicated I listened to the 9-1-1 call both in Court and in my chambers as it was filed as an exhibit. That 9-1-1 call ably demonstrates the post event emotional state of the complainant.

It is plainly apparent that the complainant was upset and perhaps angry as well. Further, there was certainly some frustration expressed with the 9-1-1 dispatcher. The 9-1-1 call powerfully demonstrates the emotional upset only minutes after the end of the traffic stop.

The complainant's phone records and that other circumstantial evidence disclosed her efforts to contact several friends shortly after the traffic stop. I think it is significant that in the very early hours of the morning when most people are asleep, she is trying to contact friends to assist with advice.

I have carefully listened to the demeanour evidence provided by the complainant's boyfriend and her friend W.L., and this evidence is also highly probative concerning the reaction of the complainant. I note as well the front desk officer at the police station noted the complainant was crying when he met with her.

I found the 9-1-1 call, the demeanour evidence provided by the boyfriend, the demeanour evidence provided by W.L. to be powerfully corroborative of the complainant: R. v. A(J.), 2010 ONCA 491; R. v. Varcoe, 2007 ONCA 194.

VIII. Conclusion: Complainant's Evidence

The complainant was a powerful and persuasive witness. I found that she was responsive to questions asked. She was careful to denote when she was not entirely sure about something by saying: "It is my impression".

She was clear, straight forward and careful. She was not evasive or troublesome when giving evidence. She answered questions clearly and directly and was responsive to the questions asked. I do not believe that her alcohol consumption impaired her reliability as a witness. Her pattern of disclosure was not a concern and clearly explainable. She did not collude with her boyfriend to fabricate this event. There is no prior relationship between the complainant and/or her boyfriend, and/or the defendant before the Court. The complainant's evidence is circumstantially corroborated by other evidence.

She did not hide behind the interpreter in court. She did not claim to misunderstand questions. She was clear, convincing, and unshaken in cross-examination in my respectful view.

For all of those reasons I accept the fact that she was sexually assaulted by the defendant.

The complainant's testimony does not require corroboration in law. But, in fact, her evidence is substantially corroborated by the other evidence in this trial.

This conclusion is not enough to sustain a criminal conviction. I must move on now to the evidence of the defendant and the evidence overall with a regard for the principles in R. v. W.D., [1991] 1 S.C.R. 742 and the criminal burden of proof.

IX. Defence Position

There are three main themes to the defence position in this case.

First of all, the defence submits that the credibility and reliability issues associated with the complainant demonstrate that she has fabricated the allegations. It is submitted that the Court should reject her evidence or at least harbour a reasonable doubt.

I have already addressed this submission.

Second, the defendant simply denies that a sexual assault occurred. Defence counsel submits that I should accept the defendant's testimony or at least sustain a reasonable doubt based upon it.

Third, the defence relies on an interesting defence that I have termed the "brazen act" defence for lack of a better descriptor or phrase.

I will address the evidence of the defendant before turning to the "brazen act" defence.

X. Credibility and Reliability of the Defendant

I should begin by acknowledging that a police officer testifying in a criminal trial is not automatically entitled to any special regard or increased credibility consideration simply by virtue of employment.

The defendant's evidence is not credited with an automatic credibility boost or any special weight to his evidence.

I must endeavour to analyze the defendant's evidence with due regard to the context of the particular circumstances. I should use my common sense to analyze his evidence. I must consider the defendant's evidence in light of all of the evidence at trial.

Finally, it is important to remain focused on the criminal burden of proof and to resist a descent into a credibility war amongst witnesses.

A. Events Prior to the Traffic Stop

The summary of the in-car camera footage and the evidence at trial supports the conclusion that the defendant stopped the complainant and her boyfriend shortly after they left a Karaoke bar.

While the defendant testified that he had noticed the boyfriend's car earlier in the evening there is no evidence that the defendant was staking out the car or lying in wait for the complainant and her boyfriend.

B. The Traffic Stop

There is no question that the boyfriend had changed the colour of his vehicle and had not yet registered this change with the relevant Government ministry.

The defendant testified that he conducted a traffic stop to address this minor Highway Traffic Act concern. Once he stopped the vehicle other investigative concerns came to light separate and apart from the Highway Traffic Act issue. These concerns involved drinking and driving, domestic violence, and vice-related concerns.

It is axiomatic that a trial judge may accept all, part, or none of a witness evidence. I largely reject the defendant's evidence in this case as incredible or untrue.

To understand my evaluation of the defendant's testimony it is necessary to provide some context concerning two important issues at trial - the defendant's response to police directives, and the defendant's response to video recording during the performance of his duty. After addressing those two issues I will return to a number of issues associated with the traffic stop.

C. Failure to Obey Police Directives

The defendant admitted to a flagrant and sustained disregard for the command directives of the York Regional Police Service regarding video.

Defence counsel submits that police command directives do not carry the weight of law and that failure to comply with command directives cannot be equated with guilt.

I agree.

Defence counsel is right that these directives are not law. He is also correct that the defendant should not be convicted as a knee-jerk reaction to this admission.

Failure to comply with a command directive should not ipso facto lead to a criminal conviction.

During the trial (with great respect to defence counsel) the Court did not sustain a defence objection to cross-examination in this area. The basis for the objection was that given the directives are not law, cross-examination on this evidence was irrelevant and should be prohibited.

I respectfully disagree.

A closer read of the leading authorities on this issue do not quarrel with my finding that the command directives are relevant: See R. v. Beaudry 2007 SCC 5 at para. 44; R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.) at para. 46.

The command directives are relevant as was specifically recognized in those decisions because the defendant was aware that the directives existed. Furthermore on the facts in this particular case, as I will explain further in a moment, the defendant sought to rely upon his policing experience as an explanation for his approach to the investigation. Finally, the defendant sought to rely on a defence that I coin the term "brazen act defence" that I will detail shortly. As such, the defendant's approach to these directives, placed in proper context with his overall approach to his public duty as a police officer, is relevant, but it is not conclusive with respect to criminal guilt.

D. The Defendant's Practice with Respect to Dash Camera and In-Car Camera Recording

It is important to note that there were two camera installations accessible to the defendant that night. His police SUV vehicle was equipped with a forward facing dash camera and an interior camera covering the rear of the police SUV vehicle. This was precisely where the complainant was located when she sat in the vehicle.

It is a curious event that neither camera managed to capture crucial, relevant, and important information concerning the defendant's interaction with the complainant. The dash-camera would have documented the timing and movements of the defendant and the complainant. By my review of the photos marked as exhibits in this trial documenting the rear of the police SUV cruiser it appears that that camera inside of the police vehicle would have been within feet of the complainant.

This objective evidence is not available. The defendant admitted that he manually turned off the dash camera as he conducted his traffic stop of the complainant's vehicle. He further testified that he never manually activated the in-car camera.

Exhibit #14 is a report prepared by an investigator concerning the in-car camera footage for the defendant's police vehicle on January 2, 3 and 4, 2015. This objective evidence supports the defendant's testimony that he would frequently turn off the dash-camera during this time period.

It is critically important to recount carefully the defendant's stated rational for this approach. During direct examination the defendant testified as follows:

"Q. Okay. It would appear over the course of those two days that you turned off your in-car camera...

A. Yes.

Q. ...once the subject vehicle has pulled over?

A. Yes.

Q. Right. Can you explain why you do that?

A. It has been my usual practice. I find that it's easier to build a rapport with people when they realize they're not being taped or on video. When I started my career, there was no video in the cruisers at that time. So I realize it's a breach of the procedure but I - I find it's easier to communicate and get my point across and a lot of these times it was just generally providing a warning for the Highway Traffic Act infraction.

Q. And do you recall from reviewing your notes and looking at that - this - those descriptors, whether or not in fact you gave out any tickets that evening?

A. No. I was giving a lot of people warnings. It was a selfish reason because I expected to go on leave. My first child was due any day at that time and I was planning on taking leave right away. So I wasn't - didn't really want to attend Court during that time that I was leaving.

Q. All right. So because your first child was almost being born, you didn't want to hand out tickets?

A. I'm also not prone to giving out a whole lot of tickets in my career. I find generally a lot of people just don't know the law fully or they've made a mistake. So I try and give warnings on a lot of Highway Traffic Act infractions.

Q. All right. And when we see those stops running through both those night shifts from January 2nd through until January 4th, is that in fact what you did?

A. That's correct.

Q. Right. And you mentioned the procedure requires you to keep the camera on, as far as you know?

A. I believe once a traffic stop's initiated, the camera is supposed to stay on until you are concluded with it.

Q. Okay. But it would appear on each and every occasion over the course of those two days, you didn't do that?

A. That's correct.

Q. Right. And you say that was sort of your usual practice at the time?

A. That's correct.

Q. And how long had you been doing that, going back before January 2nd?

A. Probably the majority of the time. The - whenever there's a warning being issued, I wasn't concerned for my safety.

Q. Okay. When you say the majority of the time, are we talking months or years?

A. Since the cameras have been installed in the cars so that's a period of years.

Q. Okay. Would there be an occasion where you would get out of the car and leave the camera running?

A. Yeah. If it was for evidentiary purposes, if there was a person that I was transporting in the rear of the cruiser or any party that has been arrested that still remains in the cruiser, but beyond that I can't think of any.

Q. Okay. So it has - do I understand it has been your practice then to turn the camera off once the vehicles have stopped?

A. Yes.

Q. Okay. Have you ever been disciplined by your police service for doing that?"

That is the end of the quote. I reject this nonsensical testimony.

The context is important here. The York Regional Police Command Directive (Exhibit #11) captures the obvious for those men and women who serve - traffic stops carry inherent risk to police officers. The policy explain:

"Officer safety is the most important factor when stopping and investigating motor vehicles".

"There is no such thing as a 'routine traffic stop'. Every vehicle stopped by the police contains some element of risk. This risk may come from the occupant of the vehicle or vehicle traffic in the area of the stop".

What the exhibit documents is this most apparent reality to the many men and women who serve the public as police officers. It is a reality available to the defendant who served as a police officer for many years. An officer simply does not know what is in play when a vehicle is stopped. You do not know what you have when you approach that vehicle.

The defendant himself cited alcohol-related concerns, domestic related concerns, and vice-related concerns within mere seconds of interacting with the complainant and her boyfriend. Yet he has turned off the camera before even fully stopping his police vehicle. That his stated intent is to give out warnings for traffic matters does not mitigate the risk. This is demonstrated even on his own version of the events.

The defendant testified that he would leave the camera on for evidentiary purposes. Stopping persons even for colour changes on their vehicle in a location where there are alcohol-serving establishments in the early hours of the morning is a circumstance befitting "evidentiary purposes". The defendant indicated the area was targeted for sobriety checks as countless drinking and driving prosecutions demonstrate the dash camera footage is relevant to those prosecutions. As demonstrated by the subjective views of the defendant, domestic-related and prostitution-related matters were immediately a concern. How does one preserve the dash-cam evidence in this scenario when you have manually stopped the camera even before alighting from your vehicle?

The defendant cites "rapport building" as an explanation. This is an unbelievable and incredible reference. How can it be easier to build rapport with the general public by turning off your camera? How would the member of the public perceive whether or not a camera is functioning? How is it easier to communicate and get a point across? If this was in fact a true concern, it would be important for the defendant to testify to a crucial fact - the directive requires the officer to inform the driver that there is a recording. It is interesting that the defendant missed that crucial point in his testimony. He did not cite this point in his testimony or rely upon it.

Even if I forgive that oversight. Let us say the defendant simply forgot to mention this fact. Given his approach to following the directives in the first place should I assume that he would follow this part of the directive? That it would be a true impediment to his attempts to build "rapport" with persons on traffic stops? An impediment to the performance of his duties?

Why was the defendant stopping vehicles in the first place much less a vehicle needing an update to the registration? If you are simply booking time waiting to go off on paternity leave and you clearly have no intent to involve yourself in matters why engage in stopping cars in the first place? The defendant testified during direct examination that despite the number of traffic stops he executed on his shift he did not give out one provincial offences ticket - only warnings. Why is a colour change on a vehicle so important? It has nothing to do with the mechanical fitness of the vehicle. The vehicle was a high-end Mercedes and there was nothing wrong with its functioning. It did not come back stolen. Why?

I accept that the defendant's general practice. But his stated reasons for this practice are irrational, directly impact his personal safety, and frankly, cause me to question his truthfulness. If I have not made it clear, I have serious trouble with this evidence.

The in-car camera requires the defendant to manually engage the instrument and turn it on. The defendant testified that when he brought the complainant back to the rear of his police SUV vehicle because of the weather and for her comfort. He testified that this is apparently not unusual for him. He cited the example (understandable examples frankly) of traffic accident investigations where he might be taking a witness statement. I accept his evidence that this is a practice that he engages in at times. What I question is why go to the trouble of bringing back the complainant based on a sparse domestic-related and vice-related concerns yet neither of these concerns triggered a concern to capture the evidence but turning on the in-car camera. What if his speculation was correct and the complainant was a victim of human trafficking for example? What if she disclosed immediately upon being released from the physical presence of her boyfriend? This evidence would not have been captured.

Once again, let me emphasize and underline the point that defence counsel cautioned me concerning - failure to follow a police directive does not equate with guilt. But my concern is that the testimony of the defendant and his stated rationale for not complying with the directive does not make sense. It is not the fact of his failure to comply with the directive.

E. Investigation at the Roadside: Alcohol

The defendant testified that he followed the boyfriend's vehicle for only a short distance before executing the traffic stop.

There was nothing unusual about the operation of the vehicle to suggest that the driver was impaired by alcohol or drug.

After running the licence plate the defendant had a conversation with the boyfriend about the colour change. I accept that he asked the boyfriend about the consumption of alcohol. This is confirmed by the boyfriend.

The boyfriend testified that he told the defendant that he had not consumed any alcohol but that the complainant had consumed two or three beers. The defendant then asked the complainant about the consumption of alcohol twice. Nothing wrong with that. He then made his way over to the passenger side of the vehicle, asked the complainant for her driver's licence, and asked her to step out of the vehicle.

The defendant testified that the complainant told him that she had consumed a few beers. It was during this discussion that he began to have concerns about the relationship between the driver and the passenger.

There is an objective basis for supporting the defendant's testimony about posing questions about alcohol given the evidence of the complainant and her boyfriend.

There is a conflict in the evidence in the sense that the boyfriend's view is that the defendant's queries concerning his alcohol consumption flowed directly to inquiries of the complainant concerning alcohol. The defendant's position is that the initial inquiries then lead to an investigation concerning potential domestic violence issues.

F. Investigation at the Roadside: Domestic Violence

The defendant testified that while at the driver's door he asked questions concerning the relationship between the driver and the passenger.

He testified that he received inconsistent information and there was a "disconnect" that made him concerned about domestic violence and the safety of the complainant:

"A. So I continued to ask them because I saw, in my opinion, that they were not in the happiest of moods. They seemed like there was a misconnection between the two of them, that they were unhappy. There was no chatter between the two of them. They were not smiling. They were not looking at each other. So I asked them what their relationship was. James replied to me that he was a friend or that she was a friend and she had replied at the same time that it was a boyfriend. So with that disconnect, I started getting - I just felt that it was odd. So I was - a concern for her safety started to show up.

Q. And what do you mean by the disconnect?

A. Just the answers...

Q. What was the concern?

A. Well, they had provided - you know, even in - being in the same space, they provided a different response to the same question. One claiming that they're just a friend and she's claiming that he's the boyfriend. So you would think if they were boyfriend and girlfriend that they would have provided the similar answer. You know, the demeanour that they - they spoke with each other. Like, they didn't speak with each other. They - I said they barely looked at each other.

Q. So what was your concern?

A. My concern was either it could have been they did have a relationship, it could have been a domestic type of relationship or a domestic issue at hand especially with alcohol being involved. The other issue is that they did not really know each other and this was possibly an escort and he was maybe a john or a driver".

Neither the boyfriend nor the complainant acknowledged being questioned about their relationship in this manner. The boyfriend was not specifically asked this question. The complainant denied that this sort of questioning occurred but then acknowledged that the defendant may have asked about her boyfriend's address. Neither witness testified to an argument or any level of upset prior to the traffic stop.

Nevertheless, even simply evaluating the defendant's stated basis for domestic related concerns leads me to be concerned that there really was nothing to justify any further involvement with this traffic stop. There is not even a feathers-weight of evidence in support of this stipulated concern particularly since I may infer that it is not abnormal for motorists to be unhappy with a police traffic stop.

There was no interaction between the driver and the complainant that caused this concern. There was no observation of injury. No signs of distress. The defendant had not received C.P.I.C. or police record information to ground a domestic violence concern. For example, a recognizance of bail involving non-contact with a particular female. He based his expressed concern about this issue solely on his momentary passing observations of the driver and the complainant that they appeared unhappy and were not speaking to each other.

Given the evidence I am suspicious that this is some sort of attempt by the defendant to justify his interaction with the complainant.

In the ordinary course traffic stops for the basis of sobriety checks focus on the operator of the vehicle - not the passenger. These stops may involve the driver being removed from the vehicle to isolate the odour of alcohol or for the purposes of an approved screening device demand for example. Not the removal of the passenger. There is no alcohol-based investigative rationale for requiring the passenger to provide her driver's licence. The next step should have been a warning or a traffic ticket and send them on their way.

G. Investigation at the Roadside: Vice-Related Concerns

The defendant's testimony that he was concerned about vice-related matters is similarly flimsy and unsustainable. This testimony also smacks of an after-the-fact justification for interacting with the complainant. I have even less regard for this evidence than the other stated investigative concerns.

I accept that the officer may have a generalized understanding that there are women who sing at Karaoke bars who go home with clients at night. He relied upon his general knowledge as a police officer. I accept the submission of defence counsel in this regard. He has access to that information. He patrols the area and he knows this information courtesy of his experience. The defendant also asserted a non-specific association with vice unit.

I accept that there are teams of police officers engaged in vice units concerned with the exploitation of sex trade workers. I accept that it may be part of their approach to attempt to build rapport with sex trade workers and understand if they are voluntarily engaged in the work.

The defendant before the Court does not have this specialized duty or experience.

His association with the vice unit on his evidence was restricted to assisting them twice. Despite being provided with the opportunity the defendant could not provide any further detail about his assistance with vice. The Court even intervened on this issue out of a concern that perhaps a legal privilege (e.g. confidential informant privilege) attached to the substance of the evidence and this might be a basis for his reticence to be clear. It was not. The sum of the evidence at its highest was that he had assisted the vice unit on an occasion or two.

Whatever his previous assistance with vice this was not a vice traffic stop.

As outlined earlier in this judgment it was a stop with virtually no purpose on the evidence of the officer. He turned off his camera because there was no forensic utility associated with leaving it on. He did not plan on giving tickets because he was soon to be on leave and did not want to be bothered with court appearances. He did not turn on his camera in the backseat of the vehicle. Again, not his practice. Not needed.

As for the after-the-fact justification that a women wearing jean shorts having come from a Karaoke bar may be a sex trade worker I would observe that the defendant did not even notice that she was wearing on his evidence until the complainant got out of the vehicle. As such, to the extent that he seeks to rely on the complainant's clothing and that that crystallized a sex trade worker concern it could only have occurred after he made the decision to ask the complainant to get out of the vehicle.

In any event I have observed photographs of the layers of clothing worn by the complainant and objectively speaking this is the sort of clothing worn by scores of women in our modern city and does not support his subjective view.

H. Investigation at the Roadside: Conclusion

I must assure the defendant that I would never ground criminal culpability on his self-admitted deliberate disregard for police directives. But his overall approach to his police work is a relevant consideration when he is seeking to justify the stop of this vehicle as being related to the performance of his duties.

The perspective of this particular defendant in this case is that he was stopping people with no intention of performing any traffic related duty. He was not interested in giving out tickets. He was not interested in getting tied up with court appearances. This was due to his impending paternity leave considerations. He was not focused on his public duty as a police officer that night.

Stopping a person 4:30 in the morning because of a changed colour on the vehicle is really low on the public safety spectrum. When I juxtapose this action with his own evidence his stated regard for the performance of his duties as a police officer, it is even more incredible.

There was no basis to investigate the complainant's consumption of alcohol particularly given that her boyfriend had not been drinking and told the defendant so. There was no investigative basis for removing the passenger from the vehicle period.

The defendant testified that after the complainant went back to her vehicle he entered his vehicle to run some checks on them. Why perform checks on both of their driver's licences on a warning for a colour change on the vehicle?

I find that the domestic-related investigation and the vice-related investigation evidence was an obvious fiction designed to justify the defendant's removal of the complainant from the passenger side of the vehicle that night.

It is this litany of findings with respect to the defendant's evidence that forces me to reject the lion's-share of his evidence concerning the rationale for removing the complainant from the vehicle.

I. The Complainant Flirted with the Defendant

The defendant testified that when the complainant came back to his vehicle her demeanour completely changed in a remarkable way.

She became much happier to the point of being flirtatious, cheerful, and "chatty". The Court took particular note of the defendant's evidence that the complainant winked at him.

It is ironic and unfortunate that the defendant declined to engage the rear seat camera in his vehicle. As a result, this important demeanour evidence that would potentially corroborate his view was not captured.

While I had no trouble with his evidence that the complainant spoke with him (indeed she testified to as much) I am quite confident she did not engage in cheerful flirtatious behaviour including winking at the defendant. She testified to being concerned about the circumstances that found her in the back of a police cruiser. I accept her evidence that she was frightened and concerned about the actions of the defendant in having her attend the vehicle in the first place.

Furthermore, this odd and curious recollection on the part of the defendant was apparently based on an independent recollection as it did not merit any detail in his notes.

Finally, and this is not to butter up defence counsel, but the care, attention, and preparation put into this case by defence counsel Mr. MacKenzie is self-evident. I think it unlikely that he would neglect the principles in Browne and Dunn by failing to put such contentious evidence to the complainant. He conducted a thorough cross-examination and never put to the complainant that she winked at the officer or was flirtatious to my recollection. As such I do not have the complainant's comment on these points.

I emphatically, categorically, reject this obvious, self-serving evidence.

J. Comments Made by the Defendant

At the end of the traffic stop, when the defendant attended the vehicle to return documents and driver's licences, both the complainant and the boyfriend recount a troubling comment made by the defendant.

The complainant testified that the defendant came over to her side of the car and said to her boyfriend: "You're a lucky guy. Your girlfriend is so pretty."

The boyfriend testified that the defendant said: "You're lucky. Your girlfriend is so pretty."

While the complainant and the boyfriend differ as to which side of the vehicle the defendant was standing when he made this comment they are both crystal clear that the statement was made. The evidence was not directly challenged and the defendant did not address it when he testified.

I accept that the defendant made this statement.

K. Two Phone Calls to the Complainant

The defendant testified that he attempted to call the complainant three times approximately thirty minutes after the complainant and her boyfriend drove away. He called the complainant's telephone number once and it went to voicemail. He was unsure if he had correctly dialed the number so he tried a different variation of the number. Again there was no answer. So he re-dialed the original number and it went to voicemail.

This time he left a voicemail saying: "Hey (first name of the complainant). I hope you got home okay."

The investigation into this matter secured the cell phone contact. It is an admission that the defendant called the complainant twice at 5:10 a.m. and 5:11 a.m. the same morning.

The defendant says the purpose of the call was to make sure that the complainant got home safely.

This explanation is simply nonsensical. First of all, by this point he knew that there was no domestic violence issue or vice-related issue. He knew that these were just two students. Second, he knew that this was just a young couple heading home after a night a Karaoke bar - and that they were attending a residence a short distance away at Don Mills and Sheppard. Third, the complainant was not driving the car so alcohol was not a concern. (Obviously he would not have let her drive the vehicle if he was concerned about alcohol). Fourth, there is plainly and simply no earthly reason to be calling to check on civilian passengers in vehicles stopped for Highway Traffic Act reasons. Fifth, the complainant told the defendant that her parents were waiting for her - they are charged with her safety. Sixth, calling the complainant at that early hour of the morning and potentially disturbing the residence of that home is peculiar. Seventh, the defendant did not even properly identify himself in the call. He simply stated the first name of the complainant and his wish that she got home okay. There is no evidence that he identified himself by name to the complainant or provided a business card. Finally, I note that the defendant did not note down the name and phone number of the complainant's boyfriend. He did not show the same duty of care or concern with respect to the complainant's boyfriend. The purpose of the call did not include checking up on the boyfriend to make sure that he got home safely.

My purpose as a Trial Judge is not to demean or denigrate the gentleman before the Court. But I have a responsibility to objectively characterize evidence.

The defendant's testimony on this issue was truly bizarre and I totally disbelieve his stated rationale for calling the complainant.

L. Scratch Pad Notes

The complainant testified that when she first entered the SUV police vehicle the defendant asked her questions and had his notebook out making notes. He asked her for her phone number. It is abundantly clear that the complainant was compelled to provide her phone number to the officer in this way.

The defendant testified that he asked the complainant for her phone number and asked her if he could call her later on just to make sure that she got home safely. He said that she voluntarily provided this information and he wrote it down in the back of his notebook.

Once again, I reject this evidence.

I have just finished addressing my findings in this case, my concerns regarding his stated rationale for calling the complainant.

A review of the exhibit containing his notebook entries does reveal another entry in the back of the notebook. It is unknown what the entry relates to or why the officer chose to place the complainant's name and phone number in that location rather than within the notes he recorded in relation to the traffic stop. The defendant said he put her phone number in the rear of his notebook because it was not related to the initial traffic stop and was not generally part of the investigation. I do not believe that. He simply wrote the first name of the complainant (not her last name) her phone number and failed to cross-reference it even from the scratch pad notes to the traffic stop.

I believe that once again, frankly he is trying to fashion a justification for having secured the phone number of this complainant, a passenger in a motor vehicle, and having called her twice.

M. The "Brazen Act" Defence

Experienced defence counsel poses an elegant, interesting, and a challenging argument as that I have termed, for lack of a better phrase, the "brazen act" defence. Essentially the submission is that the defendant would not have committed the offence given the risk of detection. The implied corollary is that the defendant is not the sort of person who would commit the offence given the risk of detection.

Defence counsel points out that the risk of detection was high. The precise positioning of the traffic stop is evidenced by the maps marked as exhibits and the testimony of several witnesses. The stop occurred in the right hand curb lane of southbound Woodbine Avenue in Markham. On the west side of the road was a community college. On the east side of the street there were some plazas and an Esso gas station with a Tim Horton's. There are commercial businesses in the area.

The defendant was in full uniform standing next to an SUV police vehicle with emergency lights flashing. The evidence at trial supports several motorists travelling by the location notwithstanding the very early hours of the morning. There was always the possibility that some sort of surveillance camera footage would be available from businesses in the area. As I said there is a gas station and a Tim Horton's right across the street. Furthermore, the complainant's boyfriend was close by in his vehicle.

The crux of this submission was that the defendant was not likely to have committed the offence because of the risk of detection. This submission blurs the line to some degree a little further by engaging a slightly different submission that the defendant was not the sort of person who would take the chance to commit the offence because of the risk of detection. Furthermore defence counsel asserts the timeframe was too narrow to permit for the offence to have been committed.

I should take care to point out that insofar as these submissions potentially engage considerations of good character evidence or some unique positive propensity-type reasoning, I need not engage in the relevant analyses. Neither the prosecution nor the defence addressed this argument with an eye to potential character evidence considerations. Furthermore, I do not need to address those analyses because I reject the argument on a number of other grounds.

To the degree the defendant is asking me to find a reasonable doubt because it is submitted that the defendant is not the sort of person who would assume the inherent risk to commit the offence I do not accept that argument.

First, the Court should be very very careful with arguments suggesting that the defendant is not the sort of person who would commit the offence. The defendant is employed as a police officer and presumably (but not presumptively) should not be engaging in a calculation of the risk versus the reward in committing a criminal act.

Second of all, if I am to engage in any consideration of this argument I would have to admit the subjective characteristics of the defendant. It is here that his subjective personal approach to police directives and the performance of his duties must be factored and considered. Once again, let me emphasize that I am not drifting into a determination that because of his approach to police directives and the performance of his duties he thereby committed the offence. But when the argument is it would be far too brazen for the defendant to commit the acts given the risk of detection I must factor in the subjective make-up of this particular police officer.

I factor in that the defendant is precisely the sort of police officer who deliberately, intentionally, and knowingly ignores mandatory directives from the York Regional Police Service concerning his use of his cameras, according to him, for as long as those directives have been in place.

I factor in that this approach is seemingly ill-advised given that the primary focus in those directives on the safety of police officers and traffic stops. This is a police officer with a spouse and a young family. Why would a police officer assume such a double-barreled risk? Disobey mandatory command directives and assume personal risk during traffic stops?

I factor in that the defendant is the type of police officer who is apparently more concerned about avoiding court appearances than performing his public duty.

I factor in that this defendant is apparently the type of police officer who, knowing beforehand that he has no intention of giving out tickets for example, nevertheless persists in stopping people operating their motor vehicles. And he asks the Court to accept that this is just his friendly way of assisting the public with warnings.

In sum, the defendant is the sort of person who takes risks with his employment. For example, not turning on his dash camera directly impacts his safety and risks his personal well-being. It further risks a "lost evidence" application concerning any criminal prosecution he is involved in. Here this is an area where they are targeting people for sobriety checks (according to him). It risks not capturing relevant timely information close in time. It displays a healthy disregard for the directives. And it displays a healthy disregard for the principle that the record should be preserved for a Court.

I have already explained why it is irrational that the defendant has the prescient ability to determine what traffic stops will be investigatory and which ones will not. On the facts in this particular case, given his assertion of domestic violence related or vice-related concerns, this precisely demonstrated the nonsensical approach. As I indicated what if the complainant really was a victim of human trafficking or forced to engage in the sex trade business? Would it not be important to capture those first moments of the investigation?

If I were inclined to accept the defendant's evidence concerning the twin investigative concerns, it would be pure folly that he failed to capture the "rapport building" that led to an important investigation.

I maintain once again that these failures should not and do not cause me to find that he is guilty of a criminal offence. I evaluated them only given the assertion of this "brazen act" defence and the other issues at trial. Further, I am obliged to conduct a contextual analysis of the evidence in this case and I cannot ignore these factors.

When I consider the subjective make-up of this defendant it serves to attenuate the submission that he is the sort of person who would be risk adverse given the chance of detection. His everyday approach to police work has rife with assumed risk. Risk he knowingly accepted.

But I need not rest my rejection of the "brazen act" defence on this evidence alone. There are other reasons.

The complainant was substantially obscured from view during the time-period when she was in the rear of the cruiser. Her boyfriend testified that he attempted to see what was happening but could not see because of the weather and the obstruction associated with the passenger rear door of the SUV police vehicle. I have viewed the captured portion of the dash camera available to me prior to the defendant turning it off. I can see through the windshield of the SUV police vehicle. I find that it was very dark in the location and the rain was a significant factor. If an interested party, the complainant's boyfriend, who was stationary, could not see into the cruiser, I think it unlikely that passing motorists would have a better opportunity. Further, I do not know how close passing motorists passed. There are three lanes southbound on Woodbine at the location of the traffic stop. Based on the record before me I do not know if motorists passed by in the nearest lane or the furthest lane away from the curb lane.

I have also reviewed the photographs of the defendant's SUV police vehicle. There was no direct evidence presented in this trial with respect to whether the SUV police vehicle's windows have been tinted. The defendant testified that the windows were not tinted.

I have reviewed the photos filed as exhibits. Photos DSC 1075 and 1073 show quite clearly that the windows on the rear and side of the SUV police vehicle are tinted. In fact, I find that the tint on those windows is quite dark. I do not know what time of day the photo was taken (depicted in these exhibits) but it is plainly taken during the daytime on January 4, 2015. The visibility in the photo taken is much better than the visibility in the curb lane of Woodbine in the early morning hours - recall I have seen what that scene looked like courtesy of the few seconds of the SUV police dash cam showing me the conditions at the scene.

The front window of the vehicle is not plain clear glass but it is certainly not heavily tinted as can be seen in Photos DSC 1073 and 1155.

The interior photos DSC 1113 and DSC 1116 show the tint as well as bars across the windows.

The passenger windows are tinted and obscured by horizontal bars. There is no question that the side perspective of the SUV police vehicle would present some obstacles to clear observation. There is a cage apparatus separating the front seat and the back seat that can be seen in photo DSC 1113 marked as an exhibit at trial. It is easy to see why the boyfriend could not see the events notwithstanding the interior light of the cruiser must have been on.

The location is a commercial area. The boyfriend testified in cross-examination that at 4:30 a.m. in the morning perhaps 10 or 20 vehicles went past. This is an estimate on the part of the boyfriend. In direct examination he was more conservative on the amount of traffic.

The timeframe was quite narrow. The objective evidence in this case supports a timeframe of approximately five minutes in the back of the cruiser. The complainant says it felt like a long time but it was probably five minutes. Her boyfriend said it was ten minutes. Of note, the complainant testified that her boyfriend used his phone to take a screen shot of their location and the time when she was asked to go to the police cruiser.

He thought that the officer was investigating her for alcohol consumption as a passenger. This exhibit was apparently provided to the S.I.U. but was not provided as an exhibit in this trial. I note this point merely to observe that there is probably circumstantial evidence informing the complainant's view of the timeframe. Defence counsel submits that the timeframe is four minutes so there is not much disagreement on this point. The complainant described the series of sexual acts committed by the defendant as taking perhaps ten seconds each. Overall, I am satisfied that the sexual contact would have been very brief.

XI. Conclusion: Defendant's Evidence

I have taken care to try to be very clear on my findings concerning the defendant's evidence.

Suffice it to say I have enormous difficulty with the evidence of the defendant and I have serious problems with his credibility.

XII. Disposition of the Trial

I have a sworn duty to provide clear reasons for my findings. I have done my best to clearly explain my findings in relation to every important issue in this trial.

The criminal burden of proof remains upon the Crown and does not shift.

I have not permitted my analysis to degenerate into a contest of credibility between the complainant and the defendant. A criminal trial as I indicated is no mere credibility contest. A resolute focus on the criminal burden of proof must prevail.

It is axiomatic that the trier of fact may accept all, none, or part of any witnesses' evidence.

There was defence evidence in this case so I am also guided by the Supreme Court of Canada's principles in W.D.

First of all, for the reasons I have explained in this judgment, I reject almost all of the defendant's evidence. Leaving aside features of his evidence that are corroborated by objective evidence and the mundane and uncontroversial (e.g. he was working that night and conducted the traffic stop) I was hard-pressed to give any credence to much of the remainder of his evidence.

I certainly, respectfully, do not believe his denial of the offence.

Second, his evidence does not raise a reasonable doubt in my mind. The defendant will have to take my word for it, but sleepless nights going over and over his evidence, I simply cannot find any basis upon which to hang a reasonable doubt.

I have come to the conclusion that I accept the evidence of the complainant's boyfriend and the complainant's friend W.L.

The Crown has proven the guilty of the defendant beyond a reasonable doubt.

I find the defendant guilty of sexual assault.

Released: November 17, 2016 Justice M. Felix