WARNING
The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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.
Court Information
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
G.H.
Before: Justice P.T. O'Marra
Heard on: June 19, 20, 21, 22, 23, 26, 27, 28, 2017
Reasons for Judgment released on: September 20, 2017
Counsel:
- K. Holmes — Counsel for the Crown
- D. Gravesande and C. Fearon-Forbes — Counsel for the Defendant G.H.
Reasons for Judgment
Charges and Initial Proceedings
1The Defendant was charged on June 14, 2016, that he sexually assaulted the complainant, S.B.C. contrary to s. 271 of the Criminal Code and sexually exploited her contrary to s. 153 of the Criminal Code. On October 5, 2016, the latter charge was withdrawn by the Crown.
2On March 31, 2016, the complainant commenced her co-op assignment at Red Lobster. She was a grade 11 student attending CSS and NPSS. The defendant was 51 years of age and an employee of Red Lobster ("RL"). He was employed as a kitchen preparation cook. The complainant's mother, J.B.C. ("her mother") was also an employee.
3As a result of a conversation a couple of weeks prior to the defendant being charged between the complainant and her mother about how much cleavage she had shown while they were at work, the complainant made a remark about how "Greg" already seen it". Her mother became concerned and had a discussion with the GM, NS regarding sexual harassment in the workplace.
4After the meeting, while the complainant and her mother were driving home, her mother said several things about the defendant. Specifically, her mother said that the defendant was a "bit of a douche", "he's an asshole". Her mother also told the complainant that "don't ever feel that you need to be afraid of saying anything" and "if you need to say something, say something".
5On the morning of June 13, 2016, the complainant called her mother at work to tell her that she wanted to complain to RL about the defendant. Her mother told her to prepare a statement.
6The complainant wrote a statement and submitted it to RL on June 13, 2016. However, the next day the complainant called her mother at work to tell her that there was more information that she wanted to tell the manager at RL presumably about the defendant's conduct. At that point her mother left the work place and reported her concerns to the police.
The Allegations
7On June 14, 2016, the complainant was interviewed on video by P.C. Vandenbrink of Peel Regional Police's Special Victim's Unit. During her interview she complained about four discrete incidents:
During the second or third week of April 2016, the defendant "cornered her" in the dry storage room. He closed the door and touched her while breathing heavily on her neck. He whispered inappropriate things in her ear. He flicked the top of her pants while he pressed against her legs. On previous occasions (she could not recall the exact dates) the defendant had approached her and humped her vigorously.
On the second occasion the defendant cornered the complainant and began to fondle her.
On the third occasion the defendant almost stuck his finger into the opening of her vagina.
On the fourth occasion the defendant pulled down the complainant's pants and kissed the top of her underwear.
The complainant wrote a statement to RL on June 13, 2016 about the defendant's conduct. In that statement the complainant alleged the following:
On several occasions the defendant told the complainant that he would like to engage in sexual activity with her.
On several occasions the defendant made inappropriate comments about her legs, her breasts and overall physical appearance.
He had caressed her legs.
On June 2, 2016 the defendant while wearing powdered gloves, slapped the complainant's bottom which left a handprint.
On May 26, 2016 the defendant had rubbed his body against the complainant.
8A Red Lobster internal corporate investigation was commenced on June 13, 2016. All employees were interviewed about the allegations against the Defendant.
9The police only interviewed two employees from RL, namely MG and MA. Those video statements were given on June 23, 2016.
10On June 14, 2016 the complainant's mother provided RL with a written statement and gave a video recorded statement to the police.
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
11As mentioned in my introduction the defendant is charged with sexual assault, a criminal offence under the Criminal Code of Canada, R.S.C., 1985, c. C-46. As such, he is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution.
12As Justice Malloy recently wrote in her decision in R. v. Nyznik, 2017 ONSC 4392:
The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty. Without these protections, there would be a serious risk of wrongful convictions -- an outcome that cannot be accepted in a free and democratic society.
The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is "more likely than not" -- i.e. better than 50/50. In R. v. Lifchus, the Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
This instruction, commonly referred to as "the W.(D.) instruction", with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.
13Using this analysis I must be certain that the defendant in the case at bar did sexually assault the complainant.
14Sexual assault trials often involve an assessment of the credibility and reliability of the witnesses.
15Assessing credibility is not a science. Often times it is difficult for a court to articulate with precision the complex intermingling of impressions that emerge after observing and listening to witnesses and attempting to reconcile the various versions of the events.
16It is clear that what is required is that my reasons show that I have seized the substance of the issue or issues and that I have directed my mind to the decisive question of whether evidence presented, including the evidence as a whole, raises a reasonable doubt as to the defendant's guilt.
17If the evidence is contradictory or confusing, I have to deal with these contradictions.
18This does not necessarily mean that I must reconcile every fragility in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.
19However, I must at least recognize the most helpful factors when assessing credibility which includes the following:
The consistency of a witness' evidence within itself.
The consistency of a witness' evidence with other witnesses.
The consistency of a witness' evidence in the overall picture that evolved at trial.
The objectivity of a witness' evidence.
The frankness of a witness.
Was the witness clear and consistent in his or her description of the events?
Was there a tendency to overstate?
20Where an inconsistency involves a material fact about which an honest witness is unlikely to be mistaken, this can demonstrate a carelessness with the truth.
The Evidence
21The Crown called the following witnesses: the complainant S.B.C., and co-workers MG and MA. The Crown also tendered the defendant's video-audio recorded statement. This exculpatory statement was replete with abject denials from the defendant of any criminality towards S.B.C. The complainant's video-audio recorded statement to P.C. Vandenbrink was entered as videotaped testimony pursuant to an application under s. 715.1 of the Code as part of the complainant's examination in-chief. I am mindful that this videotaped statement does not constitute a prior consistent statement nor corroboration.
22The Defendant called the following witnesses: NS, DH and SW.
The Complainant S.B.C.
23The complainant testified that she had first met the defendant when she started working at RL. She was hired shortly after her 16th birthday. According to the complainant she believed that her mother was a friend of the defendant. This was also corroborated by the defendant in his statement.
24The complainant indicated that she often worked at the front of RL bussing tables, running the food to different tables and trained as a hostess. The defendant worked as a cook in the kitchen which was located at the rear of RL. During a general shift she would go back to the kitchen to drop off dishes or roll cutlery at the rolling station.
25When she first started to work at RL the defendant would direct sexually explicit comments to her and other females. The complainant testified that when her and other female servers walked into the kitchen the defendant made the following comments:
"pretty white girl, I like the pretty white girls."
"oh, you know, like let's go out after work and do stuff."
"oh, you know, like let's take this out after work. Let's go and, you know, fuck after work, or let's fuck right now."
"I just want you so bad right now."
26Initially she questioned the propriety of the defendant's remarks but realized that a lot of the young males made similar comments and told off coloured jokes. She came to accept that this was the general atmosphere in the kitchen. She believed that the managers were present when vulgarity and other sexist comments were made by staff.
27There was no similar fact application before me. However, I stated during the trial during a ruling on the relevance of these comments that I would admit these comments for the purpose of assisting me in determining a fact that was in issue—namely was this a normal sexualized workplace environment? It was apparent from Mr. Gravesande's anticipated cross-examination that the defendant was taking issue with this position. I allowed the comments to be led, however I am not treating anything that the defendant may have said to the complainant or other female servers as discreditable character evidence.
28The complainant started her co-op assignment at RL on March 31st, 2016. The next day the complainant turned 17 years of age. According to the complainant, she worked with the defendant and other prep cooks in order to learn about short cook duties and how the kitchen operated.
29The complainant testified that after she commenced the co-op work assignment the defendant's sexual comments intensified. The defendant made the following comments:
"I wanna fuck you in your tight pussy."
"take you down to Jamaica."
"loves pretty white girls….likes the way white girls feel."
"oh yeah, like, you know, I like to take the edge off by going home and fucking at night, you know busting a load that takes the edge off."
30She felt that because she was working a regular shift in the kitchen from 9:30 a.m. until 3:30 p.m. she was exposed to the defendant more frequently. She testified that before there was any physical contact by the defendant she still considered this as "harmless joking around."
31The complainant testified that the defendant's comments evolved into "ass slapping and humping" approximately two to three weeks into her co-op program. The first sexual contact involved while she was working in the preparation area in the kitchen when the defendant either came up behind her and either humped her vigorously or slapped her ass. The complainant was uncertain which occurred first. However, she related an incident that was very clear in her mind that involved the defendant slapping her rear end while wearing powdered latex gloves commonly used in the kitchen. The slap actually left his handprint on her rear end. She stated that she first noticed the handprint an hour later when she went to the washroom. She was uncertain if any co-workers had noticed the mark.
32The complainant testified that on one occasion she "believed" that her co-worker DH had witnessed the defendant humping her at the prep table.
33At no time did the complainant consent to any sexual activity with the defendant.
34According to the complainant the defendant was aware that she had an anxiety disorder as he had witnessed her taking her prescription medication and they had a discussion about it.
35When asked in her examination in-chief why she never reported the humping and rear end slapping she indicated that she did not "want to cause any more problems". She was involved in an incident with another female co-worker and had been disciplined by management. Moreover, her mother had previous issues with RL and the complainant did not want to exacerbate her mother's situation by making a complaint about the defendant's conduct.
36In the complainant's videotaped statement she described four discrete sexual assaults that occurred in the dry storage room located in the kitchen area.
37The first incident occurred in the "second or third week in April" whereby the defendant led her into the dry storage room and closed the door. He pressed up against her with his body. He touched her all over her body, he breathed heavily on her neck and whispered dirty things into her ear. He asked her if she liked it and began to flick the top of her pants.
38The second incident involved similar behaviour but on this occasion he kissed her neck and started to go inside her underwear. In her viva voce evidence the complainant testified that the defendant asked if he could put his hands down her pants and she responded "yeah". She was asked to clarify how she was feeling at that point in time and she stated that her anxiety was going "through the roof" and she "literally froze".
39The third incident was similar to the first two incidents however he stuck his finger into her vagina. He stated "don't worry I have clean gloves on". She described that his finger went past the opening but did not fully insert his finger. Once he took his hand out, the defendant smiled and walked out like nothing ever happened. She thought that this incident occurred the weekend before the "May 2-4" weekend.
40The fourth incident involved similar acts as before however, the sexual activity had escalated. The defendant knelt down on his knees and pulled down her pants while in the corner of the dry storage room. He proceeded to kiss the triangle on her underwear and stated that her "pussy smells good." The defendant then stood up and scooped up something and left. The complainant believed that this last incident occurred the weekend after the "May 2-4" weekend.
41In June 2016, a discussion had taken place between the complainant and her mother involving the fact that comments had been made about the complainant's cleavage while at work. Her mother complained to the general manager, NS about the inappropriate comments that her daughter had been subjected to.
42Ms. S called the complainant into her office to enquire what if anything was going on. The complainant was told that no one in 30 years has ever made a complaint about the defendant. The complainant felt embarrassed and awkward to discuss such personal matters. She felt even more stupid about Ms. S's comment about the fact there has never been a complaint in 30 years. The complainant told Ms. S that nothing was going on and she never made a complaint.
43A few days later when her anxiety was on the rise there was an incident which ultimately led to the disclosure of the allegations. On either a Thursday or a Friday in June she was accused of not preparing a sauce correctly. She was with "P" and the defendant in the kitchen. She had a panic attack over this dispute and ran into Ms. S's office crying. Ms. S asked her to write out what had occurred. She wrote out her statement and went home. The complainant only detailed the "minor stuff" that the defendant had done to her. She did not detail in her statement the four incidents that had occurred in the dry storage room. She testified that she did not disclose the four incidents as her mom would go "crazy" at the workplace and she would lose her job.
44Similarly, after RL contacted her co-op teacher the complainant was asked to text to her a statement about what had occurred. The complainant did prepare a statement on her smart phone and texted it to the teacher, however, she did not disclose the four major incidents.
45She eventually contacted the 'Kids Help Phone' and disclosed what had occurred between herself and the defendant. Subsequently she met with her boyfriend, BG and told him everything. Eventually her mother was told everything through Mr. G. On that same day, June 14th, 2016 the complainant attended 21 division of Peel Regional Police with her mother. She met with P.C. Reist and gave an oral statement reduced to writing in her notebook. The complainant was later sent to the Special Victim's Unit and gave her videotaped statement to P.C. Vandenbrink.
46In cross-examination, she conceded that before the co-op program commenced she was employed at times as a runner and often had entered the dry storage room to obtain items. She confirmed that she was a part time employee while also attending high school. She picked up a shift whenever she could. Her shifts often started at 3:00 or 4:00 p.m. and end at 10:00 p.m. if she was closing on weekdays, or 11:00 p.m. if closing on the weekends. She would often see the defendant when she started her shifts.
47She could not recall whether or not she had ever been in the dry storage room with the defendant when she was a part time employee.
48There were occasions that she had entered the kitchen to retrieve something or roll cutlery and passed by the defendant. Occasionally she would stop for a few minutes and chat with co-workers.
49The complainant indicated that on Thursdays of her co-op program she worked at the prep table with the defendant. They worked on opposite sides of the table.
50With respect to the first incident she had told P.C. Vandenbrink that the defendant had "led" her into the dry storage room. In cross-examination she conceded that was a poor choice of words to use given that later in her statement she told the officer that they were joking and she needed to retrieve something out to the dry storage as well. She indicated that the defendant was the first to enter the dry storage room and he closed the door. This door was usually open during the day. She agreed that when the door was closed it produced a significant sound. She stated that depending where one stood in the prep area the door was visible. For example, if one stood on one side of the prep table they could see a little bit of the dry storage room.
51In cross-examination the complainant agreed that she left out that the defendant had kissed her neck until P.C. Vandenbrink asked her specifically about any kissing. During the first two opportunities to relate the events of the first incident she did not mention that the defendant had kissed her.
52She agreed that she could not recall the "dirty things" that the defendant whispered in her ear other than the question: "Do you like it?" She did not mention in her videotaped statement nor in her direct examination that she answered "yeah" to the defendant's question during the first incident. The complainant never mentioned her answer in her direct examination because she was never asked how she answered the defendant's question.
53In cross-examination the complainant acknowledged that on June 13th, 2016, the day before she gave a formal statement to P.C. Vandenbrink, she gave a written and signed statement to RL about the defendant's inappropriate behaviour. In that statement and unlike in her police interview the complainant wrote that it happened "on April 14th in the morning before the restaurant opened…" The "it" in "it happened" was the incident in the dry storage room that the complainant's rear end was grabbed by the defendant. These specific details of dates and times were not contained in her police statement given the next day. The complainant testified that the lack of details and times in her police statement was largely due to her anxiety and emotion over having told her boyfriend and her mother and a police officer at 21 division all of the details. Conversely, the complainant testified that she withheld many important details in her statement to RL as she was very emotional and afraid.
54P.C. Reist was the first police officer that the complainant spoke to at 21 division. P.C. Reist recently had a medical procedure that made it impossible for her to testify at the defendant's trial. Nevertheless in the spirit of co-operation the Crown consented to P.C. Reist's duty book notes regarding her conversation with the complainant to be entered as a brief statement of fact in the trial.
55The complainant was cross-examined extensively regarding what she had told P.C. Reist. The complainant told P.C. Reist that during the first incident in the dry storage room the defendant had "put his hands down her pants". The complainant testified that she did not recall telling P.C. Reist this fact. In regard to the first incident this was a fact that was neither in the statement to RL nor mentioned to P.C. Vandenbrink. Furthermore, the complainant told P.C. Reist that the first incident had occurred in "mid April", however in her statement to RL she specifically gave the date of "April 14th" and in her statement to P.C. Vandenbrink she estimated the date of the first incident had occurred in the "second or third week of April". The complainant did not tell P.C. Reist that during the first incident that the defendant had kissed her neck. Her explanation for the inconsistencies and omissions was that she was very anxious at the police division and that everything that she had described was just coming out like "word vomit".
56She also told P.C. Reist that the second incident occurred approximately at the end of May, which is at odds with her statement to P.C. Vandenbrink.
57In cross-examination the complainant admitted that in her statement to RL dated June 13th, 2016 the complainant never mentioned that during the first incident on April 14th that the defendant had caressed her body and kissed her neck, or pressed his body against her.
58The complainant felt disgusted by the defendant's actions on April 14th. She harboured resentment but kept quiet. Mr. Gravesande showed her a text message that she sent to the defendant. She requested a favour from the defendant to let a manager know that she was going to be late in arriving at work on April 22. But what was important in the text was the "blowing a kiss" emoji she used to sign off on the text to the defendant. She said that she had sent that particular emoji to everyone not just the defendant.
59The complainant was shown her RL statement during cross-examination. Her attention was drawn to the "powdered gloves incident". In her statement she alleged that on June 2 the defendant had slapped her rear end while wearing powdered gloves. She had left those pants at work, but the next day while wearing the same work pants "P" asked her why she had a palm print on her rear end. However, in her direct examination she indicated that on the same day that this had occurred P had pointed out the handprint an hour later and she immediately went to the washroom and wiped the handprint away.
60Mr. Gravesande gave the complainant a black t-shirt and two boxes of latex gloves, the kind that were worn in the food preparation area at RL. The complainant put on a pair of the powdered gloves for the court. It was apparent that there was no powder on the exterior of the gloves however when the complainant removed the gloves and placed that hand on the black t-shirt there was a small amount of white residue left on the black t-shirt. Nevertheless it was obvious to the court that the food preparation gloves did not have "powder" on the exterior.
61The complainant admitted she did not know much about powdered gloves. In cross-examination she acknowledged that she may have been wrong about the defendant having had worn powdered gloves during the June 2 incident.
62In her statement to the police she indicated that there could have been four or five incidents in the dry storage room but in cross-examination she admitted that she could not recall any details of a fifth incident as her mind was "foggy" at the time she gave her statement.
63It was put to the complainant that she often made sexual comments and jokes in the workplace at RL. At a particular tense moment in her grueling cross-examination the complainant broke down and ran from the courtroom when it was suggested to her that she had told Mr. HW and others that she was going camping and this would be the first time that she "would be fucked under a tent". Upon the resumption of the complainant's cross-examination she stated that she could not recall saying that or any other sexually explicit comments to Mr. HW.
64In cross-examination she acknowledged that she had heard the defendant make sexually explicit comments to a co-worker, MA.
65With respect to the fourth incident it apparently ended abruptly when the defendant uttered the words "someone is coming". However it was pointed out in cross-examination that she told P.C. Reist that the defendant had said "we don't want N to come in here".
66The complainant was cross-examined on the events of Friday, June 10th, 2016 which involved her panic attack over making sauce incorrectly. She admitted that she ran into Ms. S's office and complained about the way SW and another co-worker had treated her. The following Sunday she did not have any recollection of hugging the defendant or waving goodbye to him when she left work that day.
67In re-examination the complainant stated that the dates that she had specified in her RL statement were approximations based on her memory and the fact that she only worked with the defendant on Thursdays and Fridays.
68She also testified that at the time she gave her statement to P.C. Vandenbrink which was the day after writing her RL statement, she had left out specific dates as she was more focused on describing the four major incidents.
MG
69Ms. G started at RL when she was 17 years old. When she testified she was 22 years old. She worked as a bartender and a server. She had a workplace relationship with the complainant but never socialized outside of RL. She described the defendant as a friend.
70She testified that she had observed that the defendant and the complainant worked well together. She had never seen anything physical occur between both parties. However, she had heard the defendant make the following comments about the complainant in her presence:
"oh, she's a pretty girl".
"oh, I'd like to get with that".
71She described the overall workplace environment at RL as "a little perverted" and everybody joked around. It was not unusual for a male co-worker to remark to a female co-worker that she had a "nice ass" and for that female co-worker to respond in kind. Ms. G indicated that the defendant was in the dry storage room on more than one occasion and the defendant had "dry humped" her from behind. Ms. G told the defendant to "fuck off now, stop" and he did. On other occasions the defendant had grabbed her collar and pretended to look down her top. She testified that had occurred with other workers around in the prep area of the kitchen.
72With respect to the defendant directing sexually explicit comments to Ms. G she testified that the defendant had made the following comments to her:
"Oh nice titties".
"nice rack".
"Oh, I want to fuck you in the fat pussy".
73She testified that the defendant did not use this kind of language around the older female co-workers.
74She confirmed that the complainant's mother called her and asked her if she would make a statement to the police. However, she was reluctant to go and was firm in her evidence that the complainant's mother did not influence her statement to the police. She felt that the reason the police had asked her for a statement was only in order to speak about things that had been said by the defendant to herself.
75She was saddened over what had occurred as both were "really good friends to me".
MA
76Ms. A was 25 years old. She started at RL in February 2016. The defendant was a friend of hers. The defendant made sexually explicit comments and gestures to her as well. However, she never felt uncomfortable when he made those comments. The kitchen prep area was a very open work atmosphere similar to how the complainant and Ms. G had described. She believed that the managers were aware of how the defendant expressed his thoughts to female co-workers.
77She corroborated that she had heard the defendant make sexually explicit comments to the complainant as well.
78Ms. A testified that the complainant's mother had asked her to write a statement to the police. She felt that the complainant's mother had pressured her to do so, however she was not told what to write in her statement.
GH's Police Statement Dated June 16th, 2016
79As part of the Crown's case the defendant's unsworn statement to P.C. Vandenbrink was tendered. It was admitted on consent by the defence.
80The defendant confirmed that there was an incident that involved spilled sauce between the complainant and another co-worker. He confirmed that she left and went to the office. He also confirmed that the complainant returned to work that Sunday, hugged him and apologized.
81The defendant adamantly denied the allegations. He also denied giving the complainant smacks on the complainant's rear end.
82That was the Crown's case.
NS
83The defence's first witness was Ms. S. She had been the general manager of RL since 2012. Her employment with RL ended on August 30th, 2016.
84She estimated that on the weeknights approximately eight kitchen staff would be present and on the weekends that number could rise to 15 employees working in the kitchen. In total there were 86 employees of which there were 30 that were kitchen staff at that location.
85Ms. S confirmed that there were no restrictions on who could enter the dry storage room since it contained supplies, tools and equipment. There was always traffic going in and out of the dry storage room.
86On June 2nd, 2016, Ms. S's manager called her about a complaint made by the complainant's mother over words spoken to the complainant while in the workplace. She was requested to speak to the complainant.
87According to Ms. S the complainant met with her in her office. She asked the complainant whether or not anyone had said anything inappropriate to her. The complainant said that nothing had been said to her that was inappropriate. The complainant also said that "everything was fine" and that she was "happy" working at RL. Ms. S encouraged the complainant to speak to her if there was "something going on". Ms. S testified that at no time did the complainant tell her that someone in the kitchen made a reference about her cleavage.
88Ms. S confirmed that on June 10th, 2016 the complainant came into her office very upset and was crying. She was upset about how P (aka SW) and the defendant had treated her. The complainant also mentioned that the defendant had used inappropriate language.
89On June 13th, 2016, the complainant came into Ms. S's office and wanted to file a sexual harassment complaint against the defendant. Ms. S immediately called her director of operations, DD. She also requested that the complainant write a statement about her complaint. That statement was faxed to Mr. D.
90On that day she approached DHW to write a statement. She found him in the dry storage room and he was speaking with the complainant. Ms. S suggested that the complainant should go home.
DHW
91Mr. HW worked as a co-op student at RL from the middle of February 2016 to the end of June 2016. He was assigned to work with the defendant. He described the prep area as confined. He also had no recollection of the defendant and the complainant working alone at the prep table. He often went into the dry storage room, as did everyone else.
92He testified that he never witnessed the defendant hump or have any physical contact with the complainant. He also never saw the defendant on his knees around the prep table caressing the complainant's legs.
93He confirmed that there was a lot of sexual joking around in the kitchen. Mr. HW testified that many times the complainant initiated the vulgarity. She also bragged about the sexual acts that she had performed with her boyfriend in his presence.
94Mr. HW testified that the complainant had confided in him during a discussion in the dry storage room that she was going to make a complaint against the defendant. The complainant asked him to write a statement against the defendant. Mr. HW asked the complainant not to involve him. At this point, Ms. S entered into the dry storage room and separated both of them. She asked Mr. HW to attend her office to write a statement to RL. Subsequently, he was asked by Mr. D to prepare a second and more complete statement to RL. Mr. HW testified that he felt pressured by Mr. D to write the sexually inappropriate statements that the defendant had said in the past to his co-workers. He was asked not to write anything about the complainant's behaviour.
95In cross-examination Mr. HW called the RL investigation a complete lie because he neither saw nor heard anything inappropriate said or done by the defendant to the complainant. However, he was confronted with his first statement to RL and he had described that in the past the defendant had looked at and made sexual remarks about the complainant's breasts. This was in conflict with his testimony. Moreover, in his second statement to RL, Mr. HW described during a luncheon that he had with the complainant, she had expressed concern over the way the defendant leered at her breasts. She asked him if he could work closely with her at the prep table along with the defendant. Mr. HW testified that he did work with the complainant at the prep table after their lunch. He confirmed that the defendant did make a sexual remark regarding her breasts. The complainant simply "giggled." Mr. HW found the complainant's reaction surprising.
96In his statement to RL he never mentioned that the complainant would initiate the vulgarity.
97Although he claimed in cross-examination that his second statement was heavily influenced by RL he did not hesitate to add that he thought the defendant was "just joking around" and "should not be fired".
98It was clear from his evidence that he liked the defendant more than the complainant. He testified that dragging an innocent man to court was the worst thing someone could do.
SW
99Ms. W worked for approximately 30 years at RL. On July 22nd, 2016 she retired. She was a good friend of the defendant and had just recently attended his wedding.
100She worked with the complainant in the prep area on Mondays, Tuesdays and Fridays.
101Ms. W testified that some time ago she recalled observing a "white spot" on the complainant's pants. Once she had pointed it out to her, the complainant turned and wiped away the spot. She did not describe it as a powered handprint.
102Ms. W witnessed the sauce incident. She testified that the defendant never said anything inappropriate to the complainant on that occasion or any other time in her presence.
103She never witnessed the defendant go down on his knees and caress the complainant's legs at the prep table.
104Ms. W testified that there was a lot of traffic in and out of the dry storage room and that the door was never locked.
105The complainant never complained to her about the way she had been treated at RL. Ms. W also felt that the complainant was one of the best co-op students that she has ever trained.
106In cross-examination she agreed that the white material that she had observed on the complainant's pants could have been flour or powder.
107The last exhibit entered in the trial was a redacted report prepared by DD on behalf of RL. Essentially it indicated that Mr. D had followed up with Mr. HW and asked him more questions regarding his original statement.
The Position of the Parties
The Defence
108The Defence has submitted that the Crown is bound by the time frame specified in the information. Specifically the evidence of any sexual assault that surpassed May 21st, 2016 cannot be considered and that the Crown must prove that a sexual assault was committed between April 1st and May 21st, 2016.
109The Defence argued that the complainant is neither credible nor reliable due to a number of troubling inconsistencies in her evidence and the omissions in her original statement to RL when juxtaposed with her two statements to the police. Her evidence should not be believed as there were other witnesses that have contradicted her testimony on specific issues.
110There was collusion and collaboration, between the complainant and her mother, and to a certain extent it involved MG and MA.
111There was an absence of an exclusive opportunity for the defendant to sexually assault the complainant given the number of co-workers in the immediate vicinity of a busy restaurant kitchen and that the dry storage door was never closed.
112There was a lack of corroboration of a sexual assault where it was expected.
113There was delayed and incremental disclosure of the sexual assault allegations.
The Crown
114The Crown disagreed that the time alleged in a sexual assault case was an essential element of the offence unless in the rare circumstance that the defence hinged on time (for example, if an alibi was alleged).
115Based on the analysis under W.(D) and recent jurisprudence, I am urged to consider the evidence as a whole, all of the witnesses including the complainant's testimony and the unsworn statement of the defendant. I am not to prefer some evidence over the defendant's statement. Moreover, I should factor the strength of the Crown's case into my analysis of credibility and reliability and that I should rely on it as a basis to reject the defendant's evidence.
116The Crown argued that there was no recruitment of witnesses to go to the police and make salacious comments about the defendant. Furthermore, there was no credible evidence that the complainant and her mother collaborated or colluded to make false allegations against the defendant.
117There was more than enough opportunity for the defendant to be alone with the complainant in the dry storage room. It was ridiculous to accept that the door to the dry storage room was never closed.
118I should also reject the defendant's denials to the police in his video in the context of the entire case.
119Finally, although not raised by the defence but there was some evidence from the complainant that could be inferred as tacit consent when she answered "yeah" to whether she liked it. The Crown stated that I should consider whether the defendant made an honest but mistaken belief that the complainant had consented to the acts. The Crown firmly argued that I should not find there was one.
Analysis
Timing Issue on the Information
120I agree with the Crown that timing in a case of this nature is not an essential element to the offence of sexual assault. The Crown cannot be deprived of a conviction if the evidence led falls outside of the time frame of the indictment. This position is supported by s. 601(4.1) and (5) of the Code which states the following:
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to
(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
(b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.
(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable.
121There is considerable jurisprudence that indicates if the evidence takes the allegations outside of the time frame of the indictment/information or the date of the offence cannot be established with precision a conviction may result nevertheless. The Supreme Court in R. v. C. (M.H.), 1991 CanLII 94 (SCC) addressed this very issue in assessing the trial judge's charge to the jury. Madame Justice McLachlin writing for the majority stated the following:
12 The indictment alleged that the events in question occurred between August 1 and September 30, 1977. The complainant's testimony was somewhat at variance with these dates. She testified that the events occurred after her birthday on July 19 and before the conception of her son, which she placed in the latter part of October or early November. In cross-examination, she answered affirmatively to a question putting the events during the "summer". She also testified that she was away from the appellant on a trip to Vancouver from the end of July to Thanksgiving. This evidence suggests that the events must have occurred outside the dates alleged in the indictment. It also suggests uncertainty regarding dates which the appellant submits is relevant to the complainant's credibility.
13 In the course of his charge to the jury, the trial judge repeated three times that if the jury was left with a reasonable doubt that the offences occurred within the time period specified in the indictment, they must acquit. This was plainly in error. Section 529(4.1) of the Criminal Code, R.S.C. 1970, c. C-34, expressly provides that a variance between the indictment or a count therein and the evidence is not material. As Wilson J., speaking for the Court, observed in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 52:
If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence. [Emphasis added.]
122Furthermore, I do not believe that the Defence had been prejudiced in any way. The Defence has had the specific time frames that the complainant alleged the defendant had sexually assaulted her through statements and disclosure.
Do I Believe the Defendant?
123The first stage of the W.(D.) analysis is whether or not I believe the defendant? As part of the Crown's case the defendant's videotaped interview with P.C. Vandenbrink was tendered. The Crown has asked me to disbelieve the defendant's denials and to find that much of his statement was false. I can consider the defendant's negation in the credibility analysis. I have carefully reviewed that statement. I have cautioned myself on relying or placing too much emphasis on the defendant's demeanour when he was confronted with the allegations that he had sexually assaulted the complainant. He vehemently denied the allegations and constantly stated "that's a lie", "I did not touch her" or "I didn't do anything". I attach very little weight to the defendant's abject denials. The rapidity of denying the allegations is not uncommon for an accused to express in a police interview. Admitting guilt to serious allegations of sexually assaulting a 17 year female is less likely than to denying responsibility.
124There were concerning aspects to his statement that were contradicted in the testimony of MG and MA. In my opinion I believe that it was a fact that the "kitchen Culture" was, to quote Ms. G, a "little perverted". I believe that the defendant played a role in creating that atmosphere. Again, I do not draw any adverse inference or consider his conduct discreditable. However, the conduct and strategy of the defence as it evolved throughout the trial was to attempt to draw out evidence that attempted to not portray the defendant as a party to the sexualized work place environment. However, the defendant's comments to both Ms. G and Ms. A bore that out. Ms. G testified that she had been "humped" in the cold storage room by the defendant. As well she had to knock his hand away when he attempted to grab her rear end. Their evidence was not shaken in cross-examination on those allegations. As well, I believe that their testimony ostensibly undermined the defendant's assertion that he had never touched anyone's rear end when he claimed on page 26 of the transcript of his statement "no I don't touch their butt, I don't." I found both witnesses credible and believable on this point. Ms. G and Ms. A, I found to be fairly neutral witnesses in the trial. They had no particular allegiance to the complainant nor to the defendant. They were not pleased being involved in the investigation or the trial process.
125The defendant also stated that he only joked around with the three older women, "L, P and N" in the prep area. However, that claim was contradicted by Ms. G, Ms. A, the complainant and Mr. HW. Although, I had a lot of difficulty with much of Mr. HW's evidence he did indicate in statement's to RL that he had heard sexualized comments made by the defendant to the complainant about her breasts while in the prep area.
126I am certain that the defendant was on his best behaviour when he was in the presence of the three women he named in his interview—L, P and N. Ms. W did testify that she had never heard any sexually explicit dialogue directed at the complainant or anyone else. It should come as no surprise that the defendant did curtail his sexually explicit comments while in their presence, especially when Ms. W was in the prep area. I have arrived at that conclusion for the following reasons:
She had been employed at RL for approximately the same period of time as the defendant.
She seemed to be approximate in age to the defendant.
She was a personal friend that had recently attended his wedding.
127In addition, I simply find the defendant's assertion that no one had told him to "fuck off" when he was joking around and no one talked like that in the prep area to be self-serving and contradicted by the testimony of Ms. G and Ms. A.
128The defendant's assertion that he did not know any 16 or 17 year olds simply cannot be believed since there were secondary school co-op students that worked at RL and in the kitchen.
129The defence has argued that the defendant's offer to provide a sample of his DNA when the subject was raised by P.C. Vandenbrink has somehow further enhanced the defendant's innocence. This was a police tactic. Common sense indicated that no DNA would be present on a pair of underwear that had most likely been washed.
130So when I examine the defendant's videotaped interview and compare it to the whole of the evidence I simply do not believe him.
Am I Left in a State of a Reasonable Doubt from the Defence Evidence?
131The second prong of the W.(D.) analysis is whether even if I do not believe the defendant's evidence but I am left in reasonable doubt by it or any of the other evidence, I must acquit the defendant.
132I intend to review the issues advanced by the defence.
(i) Was There a Lack of Opportunity to Commit the Offence?
133Through the trial the defence attempted to demonstrate that it would be difficult for the defendant to find himself alone in the dry storage room with the complainant in order to commit the four incidents and other criminal acts. In addition, the Defence argued that the prep area was too busy and accessible for the defendant to caress and rub the complainant's legs during their shifts.
134More particularly, it was argued that if the managers were aware of the vulgarity and highly sexualized work environment which was contrary to the "Sexual and Other Unlawful Harassment" of the RL Team Member Handbook (exhibit #7), there was no way these acts could have been committed. Furthermore, given the high volume of traffic in and out of the dry storage room and the fact that the door to that room remained open, there was no realistic opportunity for the defendant to be alone with the complainant.
135These arguments are baseless and defy common sense. The evidence of Ms. G, Ms. A and Mr. HW indicated that the managers were present and often had heard the nature of the joking around and banter. However, I highly doubt any manager quietly stood by when the defendant commented on Ms. G's or Ms. A's or the complainant's breasts. I believe that the defendant was selective as to when, where and how he made sexually explicit comments. The Team Handbook argument is more of a red herring than anything and did not assist the defence.
136I also believe that the fact that Ms. G was dry humped while alone in the dry storage room by the defendant significantly undermined the defence's argument that the defendant could never be alone in the dry storage room. I want to make it abundantly clear that I am not relying on this evidence for propensity reasoning that the defendant was more likely to have committed the acts against the complainant.
(ii) Was There Collusion and Collaboration?
137A common theme throughout the trial was the alleged collusion and collaboration between the complainant and her mother. As well it was alleged that the complainant's mother recruited Ms. G and Ms. A in order to paint a very ugly picture of the defendant to the police.
138The complainant's mother was not a witness in these proceedings.
139I have been provided with two cases the Supreme Court's decision in R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 CCC (3d) 205, and the Ontario Court of Appeal decision in R. v. J.F., 2003 CanLII 52166 (ON CA). Feldman J.A. writing for the majority in R. v. J.F. para. 87 stated the following about a trial judge's obligations when evidence pointed to collusion:
In R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205, the Supreme Court discussed concocted evidence outside the context of similar fact evidence. The court held that a trial court must scrutinize crucial evidence with special care, and must consider any circumstances which could affect its reliability, including the possibility of collusion. In that case, the failure of the trial judge to consider that possibility led the Supreme Court to declare the verdict unreasonable.
140It is incumbent upon me to examine and scrutinize any evidence and circumstances that gives rise to the possibility of an opportunity for collusion and collaboration to concoct evidence.
141It has been asserted by the defence that the origin of the collusion started with and "awkwardly managed" by the complainant's mother. It seemed to have arisen when the complainant's mother became aware of the defendant and others leering at the complainant's cleavage. Once this became apparent it was the complainant's mother who insisted that the complainant write a statement.
142After the "sauce" incident it was evident that the complainant's complaint was not taken that seriously by Ms. S. The complainant felt let down as she was told by Ms. S that she had an "open door policy" and if the complainant ever needed to talk to her she could. The defence alleged that since her complaint had been rejected she needed to make up a sexual assault allegation.
143According to the defence, at this point in time it was necessary for the collaborators to recruit witnesses. The complainant's mother contacted Ms. G and pressured her to attend the police division in order to make a statement against the defendant.
144I was impressed with Ms. G's evidence. In my view she did tell the police that the defendant had acted inappropriately towards her but it never bothered her. She testified that she never felt pressured by the complainant's mother although I am sure that the mother of a sexual assault victim would be anxious for a potential witness to speak to the police. However, Ms. G felt that when the police contacted her it was to give a statement about her experiences only with the defendant.
145With respect to Ms. A's role in the alleged collaboration and collusion scheme the defence argued that she was unwittingly recruited by the complainant's mother to attend the police station and give a statement against the defendant. She had testified that she was reluctant to attend and felt pressured to give a statement. She admitted to the court that the complainant's mother was insistent and in my opinion that enhanced her credibility. If Ms. A was a collaborator in framing the defendant would she not have insisted that she went voluntarily?
146She testified that the complainant never told her what she should say to the police. When she did make her statement to the police she made no allegations that the defendant had touched her inappropriately or that the complainant had made any complaints to her about the defendant's conduct. Ms. G testified that the defendant never made her feel uncomfortable, but at times had taken his comments too far. At worse she told the police that at times the complainant would "roll with it" but occasionally her body language had indicated her discomfort with the defendant's sexual comments. Ms. A candidly stated that she was a friend of the defendant's.
147I do not believe that there was any planned collaboration or concoction of evidence for the following reasons:
Beyond confirming the defendant's sexually explicit comments, Ms. G and Ms. A did not confirm any meaningful aspects of the complainant's statement.
Both witnesses testified that they had told the truth in their statements to police.
It was clear from their emotional reaction and demeanour they were reluctant to go to the police to give statements.
148I also reject any notion that there was unconscious tainting simply on the basis that both witnesses had been contacted by the complainant's mother. I have reached this conclusion based on the fact that beyond having spoken to the police about the defendant's comments, there were no references that they had witnessed any discrete acts of sexual assault or had been told about a sexual assault by the complainant.
(iii) Was There a Lack of Corroboration?
149It was not surprising in a sexual assault case of this nature that there were no direct witnesses. Rarely there are witnesses.
150The complainant indicated that some of the defendant's behaviour had occurred in the prep area. For example, when he had caressed her legs, grabbed her rear end and on one occasion dry humped her and those acts may have been witnessed by others. The complainant testified that she believed that Mr. HW may have seen the instance of dry humping. He, of course said that he had not. But it did not mean that these acts had not occurred. As I understand the complainant's evidence there was a great deal of joking around proximate to the prep area and it could have easily have happened when the defendant had bent down to reach for the pie tins and the other co-workers' view may have been obstructed.
151After reviewing all of the defence evidence it does not cause me to acquit the defendant. However, that does not end the matter. I now turn to the third branch of the W.(D.) analysis: Even if I am not left in doubt by the defence evidence, I still must consider it and all of the evidence and ask myself whether, on the basis of the evidence which I do accept, the Crown has proven guilt beyond a reasonable doubt.
Was the Complainant's Evidence Credible and Reliable?
152The defence has put forward examples of inconsistencies between the complainant's initial report to RL, her texted statement to her teacher, her statement to P.C. Reist, her videotaped statement to P.C. Vandenbrink and finally her testimony.
153I am urged to examine these inconsistencies in order to assess the complainant's credibility. J. A. Galligan in R. v. M.G., 1994 CanLII 8733 (ON CA), outlined the significance of a trial judge to grasp importance of the inconsistency. He said:
28 Appellate courts are always deferential to the assessments of credibility made by trial judges who have had the opportunity to see and hear a witness give his or her evidence. Appellate courts may not substitute their views about credibility for that of a trial judge. Nevertheless when trial judges are assessing credibility it is worthwhile to keep in mind what was said by O'Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at 356-57:
If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 1919 CanLII 11 (SCC), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [Emphasis added.]
29 There was virtually no support for the complainant's testimony. There was a very material inconsistency between what she said in her testimony and what she said in her letter…
154The Crown on the other hand, argued that I should believe the complainant's evidence. There was an absence of a motive to fabricate. I must take this into consideration, however it is only one factor that I can consider in assessing credibility. Furthermore, it does not logically flow that if there was an apparent reason for a witness to lie, that a witness must be telling the truth.
155The Crown argued that it was absurd to conclude that as a result of her getting upset over the "sauce incident" that the complainant was motivated to fabricate sexual assault allegations against the defendant. Equally incredulous was the notion that the complainant manufactured allegations as a result of her mother's apparent dislike of the defendant's perverted tendencies.
156I agree with the Crown that there was no apparent reason for the complainant to lie about the allegations. After the "sauce incident" the complainant did not display any outward feelings of hostilities towards the defendant. In fact the opposite was true—shortly before going to the police, the complainant came back to work and hugged and apologized to the defendant for her behaviour. That conduct was at odds with someone who wanted to fabricate sexual assault allegations.
The Powdered Glove Incident
157According to the complainant's report to RL she alleged the following:
"On June 2nd, G and I were both in the fridge and slapped my ass as I was bent over putting a tray into the rack. He had powdered gloves on, and I had left my work pants at work. The following Monday P asked me why there was a powdered handprint on my butt..."
158In my opinion there was an internal and external inconsistency to the evidence regarding the powdered handprint. Firstly, I am satisfied that RL did not have externally powdered latex gloves in the work place for workers to use. I base this conclusion on my analysis of exhibits #3 and #4 and the in court demonstration. However, exhibit #3 (the green box) did contain latex gloves that were lightly powdered on the interior of the gloves which when removed left a whitish residue on the hands.
159Ms. W's evidence contradicted the complainant's testimony that she had a handprint on her pants in several ways:
Ms. W testified that she observed a 'white spot'.
Ms. W testified that she did not indicate to the complainant that it was a powdered handprint.
Ms. W testified that it was not a powdered handprint.
Ms. W testified that the complainant immediately wiped off the spot.
Ms. W testified that the complainant did not go into the bathroom to wipe off the spot.
160The complainant testified in her direct-examination that she went to the washroom and wiped off the handprint one hour after the defendant had smacked her rear end. However, in cross-examination she testified that she was told by Ms. W that she had the handprint on her pants the following Monday. Moreover, in cross-examination she admitted that the defendant may have only wore one glove when she clearly stated in her statement that at the time he was wearing "gloves".
161I find the contradiction somewhat troubling.
The Inconsistencies Between the RL Statement and the Police Statements
162The complainant never revealed in her RL statement the four discrete incidents that had occurred in the dry storage room. These incidents were the most serious of all the allegations that have been made against the defendant. If true, these allegations would be hard to forget and leave out of a statement. Furthermore, the complainant provided very specific dates as to when the less serious acts had occurred in her RL statement but was vague and she lacked precision about the dates of the four incidents in her statements to P.C. Vandenbrink and P.C. Reist which were both provided the next day. The complainant's explanation was rather dubious and difficult to accept.
163As she described the first incident in her statement to P.C. Vandenbrink (which was April 14th in the RL statement and the second or third week in April in her statement to P.C. Vandenbrink) she supplemented significant details that were not in her RL statement. She added that the defendant had whispered dirty things; caressed her shoulders, legs; breathed down her neck and flicked at the button on her pants. Furthermore, a day after writing her statement to RL, the complainant attended 21 division to report the sexual assault allegations to P.C. Reist. When she described the "mid-April" incident she told P.C. Reist that the defendant had put his hands down her pants. That fact was conspicuously absent from her RL statement. In addition, she told P.C. Reist that it was during the second incident that the defendant went into her pants and actually touched her vagina inside her underwear but that was not contained in her RL statement.
164In the third incident the complainant told P.C. Reist that the defendant had cornered her and touched her again under her underwear. In her statement to P.C. Vandenbrink she told him that the defendant "went past the opening" of her vagina. That was not in her statement to RL.
165In the fourth incident the complainant told P.C. Vandenbrink that the defendant knelt down on his knees, pulled down her pants and kissed the triangle on her underwear and stated to her that her "pussy smells good". He had suddenly stopped, and then scooped up something. She told P.C. Reist that the defendant started to touch her pants but had thought that Ms. S was coming. She never detailed to P.C. Reist the fact that her pants had been pulled down and that he had kissed her underwear and had made the graphic remark. This information was not in her RL statement as well.
166The complainant could not recall if it was after the second or third incident that the defendant had put on fresh gloves and remarked that he did not want to get anything dirty in the kitchen. That was not mentioned to P.C. Reist nor contained in her RL statement.
167The Crown has attributed the inconsistencies to delayed or incremental disclosure which is commonly seen in sexual assault cases. I have been directed to paragraphs 22-24 of Justice Trotter's decision in R. v. L.K., 2011 ONSC 2562, set out below:
22 My conclusion on the impartiality issue should be sufficient to dispose of a good part of this application. However, I wish to make a few comments about the two areas on which the Crown seeks to call expert evidence. On the issue of incremental disclosure, there is another basis upon which I would exclude the proposed expert testimony. In this case, the necessity requirement for expert evidence has not been established. As Major J. held in R. v. D.D., supra, at para. 64, delayed disclosure is a matter that may be conveyed to a jury in the trial judge's charge, making it unnecessary "to inject the dangers of expert evidence into the trial." As Major J. elaborated, at para. 65:
- A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
23 I recognize that the issue in this case (incremental disclosure) might be said to be slightly different from the issue of delayed disclosure addressed in R. v. D.D., supra. In R. v. Tallon (2002), 2002 CanLII 23584 (ON CA), 161 C.C.C. (3d) 256 (Ont. C.A.), the Court considered the propriety of the trial judge having permitted the Crown to adduce expert evidence on the issue of delayed and incremental disclosure, as opposed to dealing with the matter in his charge to the jury. It is important to note that the trial in that case took place prior to the release of the Supreme Court's judgment in D.D. The Court of Appeal held that the trial judge did not err in admitting the expert testimony. In reaching this conclusion, the Court noted that the trial judge did not have the benefit of D.D. at the time. The Court also pointed to differences between delayed versus incremental disclosure, noting that the latter might be more suitable for expert evidence. However, referring to D.D., the Court in Tallon went on to hold that, even if the trial judge erred in admitting the expert evidence, no substantial wrong or miscarriage of justice was occasioned by the admission of the evidence (as opposed to dealing with the issue in the jury charge): Criminal Code, s. 686(1)(b)(iii).
24 Given the passage of time and the experience of the courts in interpreting and applying D.D., incremental disclosure might well be viewed as merely a type of delayed disclosure. It would appear that the same body of knowledge and understanding about the behaviour of victims of trauma would apply to both. It is my view that incremental disclosure may be addressed in the same manner as delayed disclosure - with a proper instruction to the jury.
168In my view this was not as much of a case of 'delayed disclosure' but more of a case of 'incremental disclosure'. The complainant testified that by the time she was in front of P.C. Vandenbrink she was more focused on the more significant assaults in the dry storage room and not the minutiae of details such as dates.
169In R. v. A.S., [2016] O.J. No. 5838, Justice Quigley also commented on the fact that there is nothing inherently wrong with victims of a sexual assault to delay reporting the abuse. One must also examine if there was a relationship of dependency. At para 72 he commented:
J.D.S. testified to promises of a relationship with A.S. and a future together and so it is understandable that there may have been delayed or incremental disclosure. In that regard, as Trotter J. notes in R. v. L.K., incremental disclosure can be viewed in the same manner as delayed disclosure, but regardless, as Abrams J. reminds himself in R. v. S.R.W.:
I remind myself that the timing of disclosure of sexual assault signifies nothing. Rather, the timing of disclosure depends upon the circumstances of the particular victim. There is no inviolable rule on how people who are victims of trauma like sexual assault will behave. Any rules once believed to be sound were based on what we now understand to be stereotypes and myths. In assessing the credibility of this complainant, the timing of the complaint is simply one circumstance in the factual mosaic of the case. A delay in disclosure, or the fact that a complainant remains in an abusive relationship, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
170There was no relationship of dependency in the case at bar. It was understandable that a complainant in these circumstances may not wish to report the assault given both her age and her employment status.
171However, a slightly different approach was taken when considering incremental disclosure by the complainant and its possible impact on the assessment of credibility by Justice Bielby in R. v. J.H., [2013] O.J. No. 5413. He stated the following:
60 However, and with the greatest respect, I do not agree that incremental disclosure is the same as delayed disclosure. Incremental disclosure may mean the disclosure of more incidents or the disclosure of more details in regards to the incidents already disclosed. It may mean the combination of both. It may include inconsistencies and recantations.
61 I agree with the Crown attorney that disclosure is a progressive exercise and some of its concepts may not be understood by an ordinary person.
62 R. v. M.C., 2012 ONSC 868 (CanLII), [2012] O.J. No. 1132, is a decision of Thorburn J. of this court. He was required to determine the admissibility of expert evidence. From paragraph 56 I quote,
- I accept the Crown's submission that expert opinion is necessary to understand the research on delayed, incremental and inconsistent disclosure as it relates to child victims of abuse. I do not accept Defence counsel's submission that no adverse inference can be drawn from delayed, incremental and inconsistent disclosure by child victims of abuse. To preclude the court from drawing an adverse interest in all cases where inconsistent testimony was given by the complainant would make it difficult, if not impossible, to question the complainant's credibility.
63 The inconsistencies or recantations of a witness can be serious and may have a considerable impact on credibility. The evidence of Dr. Sas provides a different option with respect to inconsistencies and recantations, and perhaps even context to the evidence of the complainant. It does not prevent me from concluding, if I choose to do so, that the inconsistencies adversely impact on the credibility of the complainant. [emphasis added]
64 Dr. Sas testified in a case decided by Seppi J. of this court in R. v. Stea, [2007] O.J. No. 2219. From paragraph 340 I quote,
The testimony of Dr. Sas is only relevant as needed to explain the conduct of a complainant that may be counter to how a person inexperienced in such matter might expect a victim of sexual abuse to act. The evidence is not used to increase or attack a witnesses' credibility, not to demonstrate an offence was committed. Where appropriate, it may be used to explain behaviours that may be relevant to the overall assessment of a witness' evidence.
172I do believe that the inconsistencies do adversely impact the complainant's credibility.
The Kissing Emoji
173On April 22nd, 2016, at 9:10 a.m., a text was sent by the complainant to the defendant. Essentially, the complainant asked the defendant to advise a manager, on her behalf, that she would be late for work. There were two significant aspects to this text message. Firstly, the timing of the text message indicated that it was sent after the first serious incident in the dry storage room. Secondly, the emoji that was sent was kissing or blowing a kiss. The defence has argued that it made no sense that if this terrible event had occurred on April 14th or mid-April why would the complainant have asked a favour from the defendant. As well why had she signed off with a symbol of affection toward the defendant?
174In cross-examination she gave the following evidence:
Q. And do you remember if in that text message you sent some emoji with hearts attached to the face which is an endearing sign and means maybe kisses or something? I don't use emoji but....
A. I do remember that, yes. That's the way I communicate with everyone. I'm an 18-year-old girl - well, at the time 17 years old and I liked to use emojis…
Q. I'm not asking you about the meaning of emojis I'm asking you what does that depiction of a face and a heart next to the, I think, the lips, what does that mean? What is your understanding as to what it means?
A. Like, it doesn't, it doesn't mean anything to me. I was, I was letting him know that I was going to be late for work and I said thank you because I was grateful that he was gonna let them know that I was going to be late for work. Like, there was no, like, there was no meaning behind it when, when I sent it like that. It was a quick text message. I was on my way to work. There was no, there was no thought process behind it. I was letting him know that I was going to be ten minutes late for work and I said, "Thank you."
175I am aware that victims of sexual assault react differently and I have cautioned myself not to draw any adverse inference in the complainant's continued workplace association with the defendant or communicating with him. In R. v. McColeman, [2017] O.J. No. 4294, Hennessey J. recently commented on this very subject in a youth sexual assault case:
We know as courts and as lay people that the reactions of victims of sexual abuse -- and I add sexual exploitation may vary.
263 For example, there should not be an adverse inference where the complainant continues to associate with the accused (R. v. M.(K), 2005 CarswellOnt OSCJA 247). This is especially the case where the accused supplies the drugs and alcohol, the home base and the fun things to do for teenage boys. It is always the case where the child is dependent on the accused. The dependence can arise where the accused supplies essentials of life and or the substances to which the teen is addicted.
176The Manitoba Court of Appeal in R. v. R.G.B., 2012 MBCA 5 addressed the issue of myths and stereotypes in sexual assault cases. The Court highlighted the fact that the Supreme Court considered this very issue some time ago. The Court cautioned trial judges not to assess a complainant's credibility based on assumptions that are not in evidence. Justices Freedman and Chartier writing for the panel stated the following:
"[51] A further issue raised by the Crown was that the reasons of the judge seem to reveal two potential myths or stereotypes that may have improperly influenced his decision: first, that delayed disclosure of a sexual assault negatively impacts complainant credibility; and second, that a complainant would not return to an environment where she had previously been assaulted. …
[56] …the interplay between stereotypical assumptions and credibility findings… Cory J. addressed this interaction…in R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, … warned judges not to assess a witness's credibility on the basis of stereotypical assumptions.
He explained:
However, it is also the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularly careful to be and to appear to be neutral. This obligation requires the judge to walk a delicate line. On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence."
177Quite frankly the fact that the complainant sent the text message with the kissing emoji to the defendant did not factor in my assessment of the complainant's credibility. Her response when she was confronted with a screen shot of the text was reasonable and it did not conflict with any of her testimony regarding her state of mind when she sent the text message. She testified that she signed her text message with a kissing emoji as an indication of appreciation for doing a favour. The argument that "someone who had just been the victim of sexual assault would not have sent a text like that" was flawed and based on impermissible assumptions and reasoning as per the case law.
The Photograph
178A photograph (exhibit #6) was admitted through the complainant during her cross-examination which was taken by Ms. A. The photograph was taken in the kitchen prep area on or about April 22nd, 2016. From left to right it is a picture of the complainant, the defendant, SW and another cook, PLH. The complainant was smiling and the defendant had his right hand on Ms. W's left shoulder. When the complainant was confronted with the photograph this was how she explained her state of mind:
Q. And you would agree with me that your disposition as you are demonstrating in the picture looks very pleasant, you're smiling.
A. I enjoyed working in the kitchen. I enjoyed the restaurant industry very much.
Q. My question is that you're confirming in the photograph that you have in front me you're standing next to Mr. H. and you're smiling, right?
A. That is correct.
Q. You seem very comfortable in his presence, is that correct? Is that correct?
A. That, that's not true. Just because I'm smiling doesn't mean that I'm comfortable, or happy, or nothing. A smile, a smile doesn't mean anything. I could be smiling on the outside and just be, like, breaking down on the inside.
Q. You are comfortable enough to show him how to operate Snapchat after the sexual assaults, right?
A. I'm comfortable enough to show someone how to use Snapchat, yes, because I'm very aware of how to use Snapchat.
Q. Mr. H. is not only someone he's someone who sexually assaulted you allegedly, correct?
A. Correct. And at the time I wasn't - I hadn't told anyone anything that was happening. And so at the time I wasn't making it seem like anything was happening or anything was wrong. So I wasn't sitting there moping around not talking to anyone, distancing myself or whatnot or else people would've asked, "What's wrong? What's wrong? What's wrong?"
Q. Yesterday you...
A. A smile hides everything.
THE COURT: A smile?
A. A smile hides everything.
179This was another example of the inherent danger in applying stereotypical assumptions as to how an alleged sexual assault victim should act afterwards and applying those actions to assessing credibility. The complainant's response was reasonable and did not contradict her testimony about her state of mind at the time. I attach no significance to the photograph.
Conclusion
180At times during her testimony the complainant was compelling, emotional and sometimes combative.
181Often sexual assault cases involve only one direct witness, the complainant. It is always possible to find guilt beyond a reasonable doubt based on the uncorroborated testimony of a complainant. Where there are inconsistencies or omissions in the complainant's testimony often one looks for corroboration. There was none in this case.
182I do not reject the complainant's evidence entirely. However, in assessing the whole of the evidence I am left in a state of reasonable doubt based on the inconsistencies and significant omissions in her initial statement to RL. I find her failure to recollect specific dates and four memorable incidents in the dry storage room in her initial report to RL detrimentally affects the complainant's reliability and credibility. I also have doubt about her recollection of the powdered handprint. She essentially resiled from her position that the defendant had worn a glove or gloves at all when he slapped her rear end. I had difficulty accepting her evidence that she has no recollection of hugging the defendant after the sauce incident. She told P.C. Reist that the defendant put his hands down her pants during the first incident however that was not in her statement to P.C. Vandenbrink.
183The defendant may have committed or likely did commit a sexual assault or a series of sexual assaults on the complainant in April and May 2016 but the standard is higher in a criminal trial. In my opinion, the Crown has not discharged its onus of proving beyond a reasonable doubt that the defendant committed a sexual assault.
184Finally, based on my findings I need not consider whether or not the defendant had an honest but mistaken belief that the complainant had consented to any sexual contact.
185For foregoing reasons the charge against the defendant is dismissed.
Released: September 20, 2017
Justice P.T. O'Marra