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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
Vladimir Savvateikin
Before: Justice P.T. O'Marra
Heard on: February 1, 2, and April 16, 2018
Reasons for Judgment released on: August 13, 2018
Counsel:
- P. Renwick — counsel for the Crown
- M. Hogan — counsel for the accused Vladimir Savvateikin
Introduction
1The defendant was charged on February 28, 2017 that he sexually assaulted the complainant, E.I. contrary to s. 271 of the Criminal Code.
2The defendant pled not guilty. His trial was conducted over a three day period, February 1 and 2, and April 16, 2018. Two witnesses were called by the Crown, the complainant E.I. and her husband, M.I. The defendant testified in his own defence.
The Allegations
3It was alleged by the complainant that while she was being treated by the defendant, a registered massage therapist at his clinic, the defendant slipped his hand under the waistband of her underwear and touched the complainant's vagina with his fingers. While doing so, he leaned in to kiss the complainant.
4The complainant opened her eyes and turned her head to the right to avoid his kiss. Immediately, the complainant got up from the massage table and told the defendant that she had to leave. The defendant apologized and left the room. The complainant got dressed and paid the defendant's fee.
5Approximately an hour later at 2:35 pm the defendant texted the complainant an apology.
6The day after the allegations, the complainant revealed to her husband, M.I. that she was sexually assaulted by the defendant.
7On March 6, 2017 the defendant texted the complainant an invitation for a complimentary massage at his clinic in recognition of International Women's Day on March 8. The defendant offered to treat her the next day at 11:00 am. The complainant showed M.I. the text. M.I. took the complainant's IPhone and texted back on her behalf that her husband would like to attend the clinic instead.
8M.I. attended the clinic later in the day and confronted the defendant with the allegation that he had sexually assaulted his wife. The defendant denied the allegations and offered to refund her money.
9Several days later M.I. re-attended the clinic and was handed an envelope from the defendant that contained an agreement to the "incident." The "Plaintiff" was the complainant and the "Defendant" was Mr. Savvateikin. The "incident" was defined in the settlement agreement as "Treatments unsatisfactory." Essentially the defendant offered to resolve the "unsatisfactory treatments" by paying the complainant $1000.00 which included seven (7) previous treatments ($90 each) and $370.00 in "compensation."
10M.I. returned the agreement to the defendant. M.I. struck out the "$1000.00" and "$370.00" figures and printed the following at the bottom of the page:
$10,000.00 630.00 $10,630.00
11On March 28, 2017 the complainant reported the matter to the police. The defendant was arrested and released on a Promise to Appear and an Undertaking to a Peace Officer.
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
12As 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.
13As Justice Molloy recently wrote 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.
14Using this analysis, I must be certain that the defendant in the case at bar did sexually assault the complainant.
15Sexual assault trials often involve an assessment of the credibility and reliability of the witnesses.
16Assessing 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.
17It 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.
18If the evidence is contradictory or confusing, I have to deal with these contradictions.
19This 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.
20However, 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?
21Where an inconsistency involves a material fact about which an honest witness is unlikely to be mistaken, this can demonstrate a carelessness with the truth. (See R. v. Edwards, 2012 ONSC 3373).
The Evidence
The Complainant's Evidence
22The complainant was a full-time student studying in the area of Child and Youth Care. Within a year of giving birth to her child, the complainant began to develop back pain. The defendant's massage therapy clinic was located close to her home. From January until the date of the incident, February 28, 2017, the complainant attended every Tuesday at 11:00 am for massage therapy. Generally speaking the therapy entailed "deep tissue" massage in the lymph node area under her arms, her lower and upper back, and neck, legs, chest, and groin areas. The complaint wore her underwear and was always covered by a white sheet. Often the defendant would massage for longer than an hour but would only charge for one hour. The complainant testified that up until the date of the incident, she had no concerns about the appropriateness of the defendant's massages or questioned his professionalism.
23The complainant testified that near the end of her massage on February 28, 2017 while her eyes were closed, she felt the defendant's hand go into her underwear and felt his fingers on her clitoris. She opened her eyes. The defendant leaned in and attempted to kiss her. The complainant described it as a "French kiss". When pressed in her examination-in-chief by the Crown she went as far to say that the defendant's mouth touched her mouth. She quickly turned her head to avoid the kiss. She stated that "I have to go". The defendant stated either "I am sorry" or he "didn't mean it to go that far". She testified that his fingers were on her clitoris for "maybe five (5) seconds".
24The complainant testified that the defendant had massaged her groin area in the past by using an up and down motion on the front of her upper legs. According to the complainant the defendant never told her what he was going to do next during the massages and never sought her permission to massage a specific area.
25The complainant stated that after the session she paid him for the massage but was still in shock about what occurred. Since the defendant worked alone, the complainant left quickly as she was concerned that she could be raped in the clinic.
26The complainant testified that within an hour after she left the clinic the defendant sent her a text message that stated "Please accept my apology". The complainant did not respond to the message.
27The complainant testified that she told her husband, M.I. the next morning. She claimed that she wanted to go to the police to report the incident immediately however, due to her school and child care commitments it took her longer to make a complaint. The complainant testified that shortly after the incident she did attend the Peel Police Community Station on Lakeshore but it had been closed down. Then the following week after the incident, she attended the Port Credit OPP station. She testified that she was directed to make her complaint to Peel Police at 11 Division. Again, due to her college exams and her toddler, she delayed reporting the incident until March 24, 2017.
28Before the complainant went to the police, she received an unsolicited text message on March 6 from the defendant that offered her a complimentary message treatment the next day at 11:00 am to recognize the fact that March 8 was 'International Women's Day'. The complainant testified that she showed M.I. the text message. M.I. told the complainant to leave everything to him and that he would deal with the defendant.
29In cross-examination the complainant confirmed that the defendant's treatments usually were on the same areas of her body. The complainant agreed that when the defendant massaged her groin the defendant would roll and tuck the sheet inside one leg. When he finished he covered up that leg, walk around the table and performed the same procedure to her other leg. The sheet covered her chest. When the defendant massaged her stomach or lymph nodes under her arms, the defendant covered her breasts with a towel. The complainant agreed that during her previous massage therapies on her groin and pelvic, her private areas were never exposed and the defendant never crossed any boundaries.
30In cross-examination, the complainant testified that the defendant used three fingers to touch her clitoris. She testified that she could not discern which fingers the defendant used. However, according to her video recorded statement the complainant told the police that the defendant used one finger – 'probably' his middle finger.
31The complainant was asked in cross-examination about her description of a 'French kiss'. She testified that she never felt the defendant's tongue inside her mouth. The complainant at first agreed with counsel's suggestion that until she testified at trial she never described that the kiss as a 'French kiss'. But when pressed by counsel that she never described the kiss in that term to the police in her statement, she indicated that she did not remember.
32In cross-examination, the complainant testified that she could not recall if the defendant's mouth did touch her mouth. However, she recalled that his face was so close to hers that it felt like their noses touched. The complainant conceded that she did not tell the police this fact. The complainant testified that she could not remember if he touched her mouth but she could remember that the defendant's face was very close her face. The complainant testified that she did not go into "deep details" with the police regarding this part of the incident. However, the complainant testified that she was "a hundred percent" certain that the defendant attempted to kiss her.
33In cross-examination, the complainant testified that the defendant did not apologize while she paid the defendant's fee. Rather he apologized when he leaned back and removed his hand from her underwear and uttered words to the effect that he did not "mean to go this far".
34In cross-examination, the complainant testified that she did not tell M.I that evening after he got home from work due to the fact that it was too late in the evening and she was taking care of her child's needs. While they were in the living room the next day in the morning, the complainant testified that she told M.I. that she was sexually assaulted. She testified that she told her M.I. specifically that defendant put his hand in her underwear and he tried to kiss her. M.I. was upset. According to the complainant M.I. was never happy that she attended the massage sessions with the defendant, and therefore was more upset with her.
35In cross-examination, the complainant agreed that in response to the defendant's offer of a complimentary massage, M.I. typed the following SMS message on the complainant's IPhone to make it appear that the complainant communicated with the defendant:
My husband like tu come in stande Hi likes to take the frst temin Tomorro M
36The defendant responded:
I have only 11am available
37M.I answered:
OK hi will bi on time
38The text messages were marked as Exhibits #1A and #1B.
39The complainant testified that she did not see the messages sent by M.I. until later that day or maybe the next day. She was aware that he took her phone and typed something. The complainant confirmed in cross-examination that M.I. said to her that she should not worry about this anymore and that he would deal with the defendant. The complainant testified that when she saw M.I.'s texts that he sent to the defendant she believed that M.I. was going to visit the defendant.
40In cross-examination, the complainant testified that later in the day on March 7, 2017 M.I. told her that he went to see the defendant. M.I. told her that the defendant was surprised and scared that M.I. was present and not the complainant. He also told the complainant that the defendant tried to explain to M.I. that sometimes patients were not satisfied with a massage in a certain area and that he was prepared to refund her money for the massage.
41In cross-examination, the complainant was confronted with a portion of her statement in which she told the police that she was unaware that M.I. had visited the defendant. The complainant admitted that what she told the police was not correct. However, in re-examination the complainant was asked to explain why she told the police that M.I. never went to visit the defendant, and she testified that she was not actually certain whether or not he was telling the truth.
42The complainant confirmed that in her police interview she did admit that she wanted her money refunded, when she was asked by the police what she hoped would come out of the investigation.
43In cross-examination the complainant was shown the "Settlement Agreement" marked as Exhibit #2 and referred to in paragraph 9 of my reasons. The complainant testified that she had never seen the document.
44In cross-examination the complainant agreed that after she made the disclosure to M.I., he encouraged her to report the matter to the police. However, due to time commitments to other matters she did not attend immediately. She testified that she found the time to attend 11 division on March 24, 2017 which was her first and only day available for her to make the complaint.
45In cross-examination, the complainant agreed that she did tell the police in her statement that two weeks before she attended 11 division she had two weeks previously attended the OPP station, which seemed to conflict with her evidence at trial that the attendance at the OPP station and 11 division occurred on the same day.
46In cross-examination, the complainant completely rejected the defence theory that the delay in reporting the incident to the police was linked to her efforts to extort money from the defendant and that when it became apparent that the defendant was not going to pay the money that was the reason for her to go to the police.
M.I.'s Evidence
47M.I worked in the construction business. He and the complainant were married for seven (7) years.
48M.I testified that the complainant told him about the incident the next day. She shook when she told him about it. He admitted that he was "boiling" inside, but remained calm. He testified that he asked the complainant for the defendant's phone number so he could call the defendant. M.I. testified that he called the defendant and arranged to meet the defendant at his clinic the next day or a few days later. M.I. confirmed that he went to see the defendant. He testified that the complainant had shown the defendant's texted apology. M.I. testified that during the visit the defendant never admitted that he did anything inappropriate to the complainant but said that "putting his hands in her underwear and trying to kiss the complainant was not part of his business". M.I. testified that the defendant repeatedly told M.I. not to worry that he would make it up to her. He testified that was the extent of the conversation.
49M.I. testified that approximately a week later the defendant contacted him, and asked M.I. to come to the clinic. M.I. attended the clinic and was handed an envelope by the defendant and M.I. left. He testified that there were no discussions during the second visit. M.I. testified that when he returned home he opened the envelope and it contained the defendant's offer to return all of the money. The offer was formulated as the Settlement Agreement. M.I. testified that he was unhappy that the defendant drafted an offer to settle the matter by paying the complainant $1000.00 because the defendant thought that the complainant was not pleased with his services and as such he revisited and returned the envelope to the defendant. M.I. testified that during the third visit he told the defendant that the matter was not about refunding the money for the reason that the complainant was dissatisfied about her massage treatments. Furthermore, M.I. told the defendant that it was ridiculous that the defendant did not admit in the document that he did anything wrong to the complainant. M.I. testified that after the third visit he never talked to the defendant again. He admitted that he told the complainant about "what kind of paper he gave me" and cautioned the complainant not to send the defendant any text messages or talk to him anymore. M.I. testified that initially he was not certain if he ever texted the defendant. He testified that he felt that they may have just talked on the phone or "maybe some messages…or a message too".
50In cross-examination, M.I. testified that he was not pleased that she was visiting a male massage therapist, however, he was generally fine with it since the complainant felt much better.
51In describing the incident to M.I., the complainant told him that she was laying on her back and she felt the defendant's hand go into her underwear to her vagina, she opened her eyes and the defendant attempted to kiss her. She jumped up, got dressed, paid him and left. After being told about what happened, M.I. testified that he asked for the defendant's phone number. He also admitted that the day that the defendant offered the complainant the complimentary massage he took her phone and texted him back. M.I.'s evidence in cross-examination seemed to conflict with his original testimony the day before on this point. As I already stated M.I. was sure that he called the defendant the next day but was uncertain on whether or not he sent any text messages to the defendant on his phone, and in spite of that a day later in cross-examination M.I. was very clear that he did text the defendant, albeit on the complainant's phone.
52In cross-examination M.I. admitted that he did not tell the police in his video recorded statement that he first texted the defendant on the complainant's phone.
53During his cross-examination, M.I. confirmed that he was responsible for the text messages in Exhibit #1B on the complainant's phone.
54M.I. confirmed that he met the defendant on three (3) separate occasions at his clinic.
55With respect to the first visit to the clinic, M.I. reiterated that the defendant wanted to make it up to the complainant, however, M.I. rejected counsel's suggestion in cross-examination that the defendant wanted to give the complainant her money back. M.I. testified in regards to that first visit that the defendant indicated that if anything inappropriate had occurred that it was an accident.
56With respect to the second visit to the clinic, M.I. testified and confirmed that the defendant called him to attend the clinic. When he attended, he received the envelope with the settlement agreement inside. M.I. testified that he read it in his car while in the garage of their home. He was outraged that the defendant stated in the settlement agreement that the complainant was "unhappy with his services". He stated that he left the agreement in the car so the complainant would not see the document. He testified that he never showed her the agreement so she would not be upset. However, M.I. admitted that he did tell her about the details of the settlement agreement. M.I. agreed that he told the police in his statement that he did show the complainant the settlement agreement and that was his mistake.
57In cross-examination, M.I. admitted that he made the changes to the settlement agreement as shown in paragraph 10 of my reasons while he was seated in his car. However, he testified that he left out a "zero" by mistake as he wanted to write in that the sum to be paid to the complainant should have been "hundred and six thousand" dollars. He testified that he wanted to "sarcastically" increase the sum to be paid to the complainant. He wanted to do this in order to demonstrate to the defendant the degree of damage he had caused the complainant. M.I. maintained that this matter was not about the money. He wanted the defendant to admit what he had done to the complainant was wrong and to apologize. It was certain that the complainant would never sign the settlement agreement. According to M.I.'s testimony, in his opinion the agreement was dishonest as the defendant did not touch the complainant by "accident". Since there was never going to be an agreement, M.I. testified the purpose he returned for a third visit was to see the defendant's face. In addition, M.I. testified that he told the defendant the following: That he was dishonest, the complainant was always pleased with his treatments in the past, and that the incident was not an accident.
58In cross-examination, M.I. agreed that he did not tell the police in his statement that the complainant said anything about the defendant putting his hand in her underwear. M.I. explained this omission was as a result of his nervousness speaking to two police women about the incident. He testified that he forgot to mention that fact and a few other facts as well such as the defendant's offer to settle the matter for sum of $1000.00.
59M.I. also confirmed in cross-examination that he encouraged the complainant to go to the police to report the incident however, her busy college and child care scheduled prevented her from doing so until March 24, 2017. M.I. testified that the complainant had attended the Lakeshore Community Police Station, the OPP station and before she reported the matter to Peel Police.
The Defendant's Evidence
60Since 2009 the defendant has been a registered massage therapist in Ontario. He has operated his own massage and osteo-therapy clinic in Port Credit since 2011. He testified that the complainant was his client since January 24, 2017. The complainant attended seven (7) times for Swedish massages. Specifically, the complainant was treated for lymph node pain, anxiety attacks and number of other ailments.
61He testified that on February 28, 2017 during the client intake, the defendant asked the complainant questions about what ailed her that particular day. According to the defendant, the complainant complained about swollen lymph nodes around her neck, arm and groin areas. Near the end of the massage, the defendant testified that as soon as he treated the complainant's groin area, she complained about increased pain from the shifting of the pubic bone. The defendant testified he decided to perform an orthopaedic test. The test was outlined in three (3) diagrams produced and filed as Exhibit #3 from the Greenman's Principle of Manual Medicine. He explained the test to the complainant and according to the defendant's testimony he received "verbal consent" from the complainant to continue with the test. The defendant proceeded to remove the blanket and placed his fingers on her pelvis below her belly button with his fingers pointed toward the complainant's head. Then the defendant slid his hand down towards the complainant's pubic bones to check to see if the pubic bones had shifted and the complainant experienced any pain. The defendant testified that when he applied slight pressure to this area the test was negative. In other words, as he performed the test he did not observe any signs of discernable discomfort on the complainant's face. According to the defendant's testimony, after the test was completed the complainant opened her eyes, and he asked her if everything was okay? The complainant did not respond but simply got off the massage table and left the room. The defendant felt that it was odd that the complainant did not answer his question and he stated to the complainant after she got dressed that "something was not right". He testified that he explained the test procedure again but the complainant refused to speak to the defendant. The complainant paid for the treatment and left. The defendant testified that the complainant never complained or accused him of anything. Nonetheless, the defendant felt that there was a misunderstanding and he testified that at the time he did not want to lose her as client. Consequently, he texted the complainant an apology shortly afterwards.
62The defendant testified that a week later he texted the complainant a complimentary offer for a massage as it was customary for the defendant to send out an offer of a free massage to attract new clients and a discount to his existing clients in recognition of March 8 as International Women's Day.
63The defendant testified that he believed that the complainant responded on behalf of her husband and scheduled him for an appointment for a massage treatment on March 7, 2017 at 11:00 am. M.I. missed his appointment, however, he attended the clinic much later that day. According to the defendant, M.I. was very aggressive and threated to assault the defendant. However, M.I. changed his mind and just wanted money. The defendant testified that he responded to M.I.:
…if your wife not satisfied with the – if your wife not satisfied with the treatment, I give you all you money back, but right now I'm busy, just leave my office.
64The defendant testified that after M.I. left his clinic, he printed from the Internet samples of settlement agreements. The defendant drafted an agreement that included refunding the complainant's seven (7) treatments. According to the defendant's testimony, he texted M.I. to come to his clinic to sign the settlement agreement. After M.I. picked up the agreement, he returned the agreement and had written in that he wanted $10,000. The defendant testified that at this point he was convinced that the entire matter was about the money and told M.I. that if he was looking for easy money that he had come to the wrong place. The defendant stated that he was prepared to give the family an extra $370.00 to "round up" the settlement to $1,000.00 as he never wanted to see the family again.
65Notwithstanding that the defendant did nothing sexually inappropriate to the complainant he testified that he refunded her money and more for the following reason:
First of all, I put all my professional skills and knowledge to help this patient. And second, I know so many cases with the same kind of complaints, so it was easy for me to just give them money back that she paid and forget about this case.
66The defendant denied the allegations that he sexually assaulted the complainant.
67In cross-examination, the defendant testified that during the first encounter with M.I. and after he changed his mind about assaulting the defendant, M.I. stated:
You have to give all the money back. The money she paid, you have to give it back and something on top , that's what he said. [Emphasis added]
68The defendant testified that M.I. never said to the defendant what he would do if the defendant did not pay the money. Despite being terrified of M.I., the defendant conceded that he subsequently met with M.I. while he was alone in his clinic on two further occasions.
69The defendant admitted that he did not talk to the complainant after he apologized, nor did he make any effort to clear up any misunderstanding that she may have had about the osteo-therapeutic test as he felt that it "wasn't a big deal".
70In cross-examination, the defendant testified that during the first encounter with M.I. at no point during the conversation did the defendant inquire about what were the allegations. The defendant stated that he did not want to know as he never did anything inappropriate.
71In cross-examination, the defendant testified that he never had a complaint like this one in the past. The defendant considered this complaint a "cheap complaint" and it was worth it to him to pay the complainant $1,000.00 to get rid of the complainant and never see her again, notwithstanding he maintained that he did nothing wrong. The defendant admitted that he was not even certain if the complainant was even aware of M.I.'s demands for money from the defendant.
The Position of the Parties
The Crown
72The Crown argued that the defendant committed the offence of sexual assault, and that he wanted to make the complainant's allegations go away through a negotiated settlement agreement with M.I.
The Defence
73The defence's theory was that the complainant reacted negatively to the defendant's osteo-therapy test, told M.I. and M.I. attempted to extort money from the defendant. Presumably, after it became apparent to M.I. that the defendant was not going to pay $10,630.00, the complainant decided to go to the police and falsely accuse the defendant of a sexual assault.
Analysis
74The issue to be resolved is whether the Crown has proven that the defendant, committed a sexual assault on the complainant beyond a reasonable doubt. There is no question that the complainant, described the actions of defendant, as a touching of a sexual nature without her consent which, if accepted, would constitute a sexual assault as defined in R. v. Ewanchuk (1999), 131 C.C.C. (3d) 481 (S.C.C.). In this particular case then, the twin questions for analysis are credibility and reliability.
Do I Believe the Defendant?
75The first stage of the analysis in W.D is whether or not I believe the defendant? I carefully listened to the defendant's evidence. It was obvious that the defendant is well-educated and articulate. He did not overstate his version of the events nor was he particularly combative in cross-examination. However, in my opinion, the defendant's account of whatever occurred near the conclusion of the complainant's massage, and his motivation for drafting the settlement agreement, defied any common sense.
76The defendant testified that as a professional massage therapist he was concerned about keeping a good reputation in the community. It made sense that maintaining a reputation for honesty and integrity was important to his practice. He agreed that even one "mistake/slip" could essentially ruin his career. That being the case, after the defendant was initially confronted by M.I. in his clinic, I was troubled by the defendant's failure to inquire about the details or the nature of the complainant's allegations. I would think if his reputation was so important that the defendant's professional reputation hung in the balance, perhaps over spurious and false allegations, the defendant would want to know what the allegations of impropriety or professional misconduct were. It was more logical for the defendant to find out what were the allegations and vigorously defend his honour and reputation. Finally, his response in cross-examination as to the reason that he refrained from asking about the accusations was that he did nothing wrong. The defendant felt that it was not necessary to ask M.I. any questions as he testified that "we had a nice treatment is done very well, everything's good". According to the defendant's direct examination, conversely everything was not good when the complainant left the clinic. The defendant confirmed that after the session the complainant was speechless. The defendant testified that he felt that he was on the verge of losing a client and consequently sent the complainant an apology. I have difficulty accepting the defendant's evidence in cross-examination, since according to the defendant's testimony"everything's good". That is difficult to reconcile with his evidence in-chief as to why he apologized.
77Furthermore, I find that it was peculiar that the defendant was prepared to enter into a settlement agreement, completely refund and compensate the complainant over the unsatisfactory treatments (the "incident") without learning the details of the complaint or the nature of the unsatisfactory treatment. If, the defendant did nothing wrong to the complainant why refund the money and pay a compensatory fee? The defendant's explanation that this was a "cheap complaint" did not have the ring of truth. He was contradicted later in his cross-examination when he acknowledged that $1,000.00 was a lot of money.
78The defendant testified in direct examination that he was prepared to refund the fees for the seven (7) treatments and decided to add $370 in order to "round it up to $1,000". However, in cross-examination the defendant contradicted himself by his assertion that M.I. demanded that he add the compensation when M.I. said to the defendant the following:
You have to give all the money back. The money she paid, you have to give it back and something on top. [Emphasis added]
79In my opinion, the defendant's post-offence conduct in negotiating a settlement for an unspecified incident or unsatisfactory treatments and then texting an apology with no follow up explanation with the complainant was less consistent with protecting his reputation and denying any wrong doing but was reasonably consistent with the defendant attempting to cover up his liability. I find that the defendant was not a credible witness. I do not believe the defendant's evidence and I am not left in a state of reasonable doubt by it.
Has the Crown Proven Guilt Beyond a Reasonable Doubt?
80I 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, has the Crown has proven guilt beyond a reasonable doubt?
M.I.'s Evidence
81I agree with the Crown's submission that M.I.'s evidence is largely irrelevant to whether or not the complainant was sexually assaulted by the defendant. Perhaps his evidence could be given more relevance and weight if I had an evidentiary foundation to find that the complainant and M.I. conspired to extort money from the defendant. But in my view M.I. operated on his own, and not in concert with the complainant, to negotiate a settlement. The complainant's evidence supported this conclusion. The complainant did not see the contract but M.I. told her about it. I accept M.I.'s evidence that he omitted to tell the police that the defendant had offered him $1,000.00. I do not believe this omission undermined his credibility. In fact, it may have been the case that M.I. either saw an opportunity to make easy money or he truly believed that this was not about the money. In fact, I sense it may have developed into the former after he read the settlement agreement. M.I. may have wanted a $10,630 payment, after all M.I. wrote the dollar figure into the settlement agreement. I am suspicious about his explanation that he forgot to insert an additional zero into the figure to make the settlement $106,000 or the absurd amount as one million dollars that he testified too. Upon a close examination of the settlement agreement, specifically the numbers added to the contract by M.I., M.I. was meticulous to write in very small zeroes in the cents column. As well M.I. correctly totalled the two figures and therefore he would have forgotten to insert zeroes in two places--the $10,000 figure and the total figure of $10,630. Nevertheless, this is an inconsistency that has very little relevance when I assess his evidence.
82I do not think there was anything unusual that M.I. refrained from reacting for approximately six (6) days after the complainant told him what had happened. His explanation that he wanted to cool down was reasonable.
83I also accept that M.I. most likely did tell the complainant at some point that she should report the matter to the police.
84Generally, I found M.I. a credible and trustworthy witness. However, I do not believe that his evidence added to or subtracted much from the Crown's case.
The Complainant's Evidence
85I do not accept the defence's assertion that the complainant delayed reporting the matter to the police for a month while M.I. tried to extort money from the defendant. I am not satisfied that there was a conspiracy to do so between the complainant and M.I. I appreciate that the complainant was inconsistent regarding her visits to the OPP station and 11 Division of the Peel Police on the same day versus on two separate occasions, but it did not detract from her credibility. She gave a reasonable explanation that when she made the inconsistent statement to the police that at the time she did not feel that the timing of the visits was consequential. Furthermore, if I found that the complainant was complicit in the extortion plot, the delay in reporting the allegations to the police would take on greater significant and would call into question her credibility. But it does not in this case. There is nothing inherently wrong or suspicious in delayed disclosure in a sexual assault.
86In R. v. A.S., [2016] O.J. No. 5838, Justice Quigley 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 his honour 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., [2015] O.J. No. 6943:
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.
87Obviously, there was no relationship of dependency between the complainant and the defendant, however, the complainant was married to M.I. and M.I. was not pleased that she saw a male massage therapist. The complainant testified that she did attend the Lakeshore community police station and it was closed. She found that 11 division was too far away at the time. The complainant further testified that she was at a very busy stage in her life with her child's needs and her college examinations and research papers which prevented her from reporting the matter a month later. I accept her explanation.
88The defence argued that there was a significant inconsistency between her story to the police and in her testimony in regards to the number of fingers or which finger that the defendant used to touch the complainant's clitoris. This was an intricate detail that was difficult to reconcile and, one that the complainant may be uncertain about. In my view, it was understandable that she was uncertain on this point given the fact her eyes were closed and she was in shock. In my opinion, it was of no importance whether she was certain on this point. Nonetheless, she was absolutely certain about that the defendant's hand/finger(s) touched her vagina.
89I did not find that the complainant's apparent inconsistent evidence on whether the defendant French kissed or attempted a kiss, significant enough to undermine her credibility. The complainant's testimony was the first time that she described the kiss as a French kiss. She did not use that term to describe the kiss to the police. In my view, her use of the expression was in the vernacular or an overstatement. She testified that she was aware that a French kiss required the act of using the tongue, however she never told the police nor did she testify that the defendant used his tongue. In my view, she described an attempted kiss that was so close that she could feel his breath and perhaps his nose on her nose. The complainant explained that she immediately turned her head to avoid the kiss. I accept her evidence that the police did not probe those particular details nor did she feel that it was necessary to be that detailed about the attempted kiss. Nevertheless, the complainant was 100% certain that the defendant's intentions was to kiss her.
90The defence argued that if the complainant was really in shock while the defendant placed his hand on her vagina, it did not seem reasonable that it would take her five (5) seconds to open her eyes and react to the inappropriate touching. I was uncertain if the defence argued that her time estimate was incorrect and embellished or since this act was unexpected how could the defendant have had his hand on her for this long time period? In any event, I will deal with both questions. If something unexpected occurred how one is a person expected to react? In my view, judging time periods while under stress or being violated can be very unreliable and imprecise. I accept that the complainant was shocked and surprised. In my view, on the one hand, the complainant's estimation of the amount of time that the defendant had placed his fingers on her vagina was not unreasonable but on the other hand it was another intricate detail that was inconsequential in my assessment of her credibility.
91It was further argued that the complainant was not credible as she mislead the police when she stated that she was unaware that M.I. had visited the defendant. I do not agree this undermined the complainant's credibility. The complainant admitted in re-examination that she told the police that she was unaware if M.I. had actually visited the defendant as she was not entirely certain if M.I. had told her the truth about the visit. Regardless, the complainant testified that she was aware of his visits and the fact that the defendant wanted to refund her money. That is also the reason why the complainant indicated in her police statement that she wanted her money returned or in her words "compensation to get my money."
92There was very little discrepancy with the version of events that the complainant told to her husband and the police. The defence argued the versions were inconsistent to the extent that counsel argued that M.I. never told the police that the complainant said to him that the defendant went into her underwear. Even if there was an omission by M.I. on this point he did not leave it out of his evidence: he was very clear that the complainant told him that the defendant went into her underwear in order to touch her vagina. The complainant testified that she did tell her husband at the time of her disclosure that the defendant put his hand in her underwear.
93When I assessed the complainant's evidence, I have no hesitation in accepting her version of the events. On the evidence before me, I do not accept that she fabricated the allegations for monetary gain. After all she was happy with the services provided by the defendant. The complainant was straightforward in her evidence. I see no basis for rejecting her evidence. Her version of the events was not overstated or embellished. She was analytical and introspective. I reject any notion that she was complicit with her husband to extort money from the defendant. If such were the case, a reasonable act by the defendant would have been to report the matter to the police. However, the defendant apologized for his offensive behaviour. I find that he offered the complainant a free massage on International Woman's Day in order to either test the waters, or placate the complainant, and the created settlement agreement to cover up his culpability.
94Based on all of the evidence that is before me, I find the defendant guilty of sexual assault.
Released: August 13, 2018
Justice P.T. O'Marra