St. Catharines
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
GURPREET TOOR
Before Justice Fergus ODonnell
Reasons for judgment released on 29 August, 2018
Mr. H. Limheng for the Crown
Mr. M. Del Gobbo for the defendant, Gurpreet Toor
Overview
Gurpreet Toor was charged with three counts of sexual assault1 and three parallel counts of sexual interference arising out of alleged misconduct in relation to three separate complainants. The complainants were all employees at a fast food restaurant operated by Mr. Toor and his wife in St. Catharines.
I dealt with both Mr. Toor's application to have the charges stayed because of allegedly excessive delay under s. 11(b) of the Charter of Rights and with his trial on the merits. These are my reasons for dismissing his Charter application and for having a reasonable doubt on the merits and thus finding him not guilty.
The Application to Stay the Charges for Delay
I shall try to be brief in dealing with the s. 11(b) application as I found it to be fundamentally without merit.
The allegations against Mr. Toor came to light in late April, 2015, when the complainant E went to the police with her allegations. The police investigation uncovered allegations raised by B and D of sexual misconduct by Mr. Toor about two weeks before his alleged offences against E. Mr. Toor was arrested on 22 April, 2015 and all the charges were in place and on a combined information by 30 June, 2015. The Crown proceeded by summary conviction. The trial on the merits began before me on 11 December, 2017, i.e. about thirty-one-and-a-half months after the first information was laid. At first glance, a total time to trial of that length superficially suggests that scrutiny is called for.
Mr. Toor's trial before me was actually his second trial date on these matters. His first trial was scheduled for 30 September, 2016. On that date, represented by Mr. Root, Mr. Toor pleaded guilty to sexual assault against E. After the plea, Mr. Toor's wife addressed the court and said that there had been a miscarriage of justice as a result of the plea. The matter went over to 1 December, 2016 for a pre-sentence report. In his discussions with probation for the preparation of his pre-sentence report, Mr. Toor denied he was guilty, which set in course an application to strike the plea.
Mr. Barr represented Mr. Toor for the purpose of the application to strike the guilty plea. That application took place over four days in February to April, 2017 and the plea was struck on 5 May, 2017. Mr. DelGobbo came on the record on 19 June, 2017, a judicial pre-trial was held on 12 July and the s. 11(b) motions date of 23 November, 2017 and the trial dates of 11-14 December, 2017 were set.
If extra-terrestrials were to visit Canada to study our criminal court system (or if they have already done so), it is probable that the two things most likely to perplex them would be our law's treatment of drink-driving offences and its treatment of s. 11(b) of the Charter. (Aliens attending a trial in which both issues arose would probably run back to their ship and flee the galaxy forever.) This case raises only one of those two issues.
It is ironic that in supposed support of the Charter right to a timely trial, gob-smacking amounts of judicial resources that might otherwise have been devoted to conducting more timely trials have instead been spent sharpening judicial pencils for the purpose of attributing trial delay to one side or the other. Tens of thousands of set-date courtroom hours have surely been spent papering the record with assertions, sometimes sincere, about how eager the defendant is to have the allegations determined on the merits and how grievously he has suffered through no fault of his own, but for the most part despite him having done nothing to expedite his trial or to make his supposed jeopardy known until he files an application to have the charges stayed.
Over the course of the thirty-five odd years that s. 11(b) has been in existence, the Supreme Court of Canada has provided guidance on its meaning and on how courts should apply it. The two zeniths (or nadirs, depending on one's perspective) of that guidance can be found in the Askov/Morin line of cases2 and in the much more recent 5:4 decision of the Court in R. v. Jordan, 2016 SCC 27. The foundational flaws inherent in the Jordan majority judgment are both substantial and troubling, of which more might be said on another occasion, but for present purposes the bottom line is that a trial court is bound by the decisions of appellate courts and I must apply the law as the Jordan majority has set it out,3 even if at times I wonder if there might be a spare seat on that alien space-ship. The present case, with its original trial date scheduled for September, 2016, (about three months after Jordan was released), counts as a "transitional" case under the Jordan guidelines.
There are a number of ways one could look at the issue of delay in the context of this case. The most obvious and most sensible would be to look at the fact that Mr. Toor had a trial date set for 30 September, 2016. On that date, he pleaded guilty. If he had not pleaded guilty, his trial on the charges from all three complainants would have taken place starting on 30 September, 2016, about sixteen months after the charges were laid (depending on which complainant is involved) He later resiled from that guilty plea, which set in course an entirely predictable process including the application to strike the guilty plea and the new trial date which followed. After he had retained Mr. DelGobbo, Mr. Toor obtained a date for his second trial, which was set for four days, along with judicial pre-trials and an intervening motions date, less than six months after he had new counsel on the record. On a simple, and entirely rational, analysis, Mr. Toor is not to be punished for having withdrawn his guilty plea, but neither can he turn that choice on his part into a weapon against the Crown, which represents society's interests here. It was Mr. Toor, with the benefit of legal advice independent from his own counsel, who uttered the word "guilty" before Justice Wilkie, and nobody else. It was he who changed his mind. It was he whose decisions first told the complainants that their judicial ordeal was over and then upended that certainty on their part and threw them back into the maelstrom of the criminal justice system. It is not only defendants who suffer from a lack of closure in the criminal justice system. I say none of this to criticize Mr. Toor, simply to forestall any suggestion that he should benefit from the choices he made as a mature adult.
The bottom line is that the extraterrestrial visitor on the Clapham omnibus, the emblematic reasonable person in the history of our legal system, could never find a s. 11(b) violation here.
If I ignore common sense and instead apply the sometimes tortured logic of the law of s. 11(b) the same result ensues. The period to Mr. Toor's first trial date clearly violated neither the Askov/Morin standard nor the Jordan standard. The period between Mr. Toor's original arrest and 10 May, 2016 when his September, 2018 trial date was fixed initially appears long, but much less so when one considers the fact that there were new allegations after the original charges, the length of time taken by defence counsel to review disclosure, the importance of the Crown pre-trial and judicial pre-trial processes in the criminal trial system and the assigned Crown's illness requiring re-scheduling of the judicial pre-trial. Even if the time period before the set-date was somewhat prolonged, one must then consider the very short time period (about four-and-a-half months) between when the trial date was set and when it was scheduled to begin (and scheduled to finish within about two weeks of its start). No Askov/Morin s. 11(b) argument could credibly be founded on those facts. Even a non-transitional application of Jordan, the trial on a summary conviction matter was set to conclude under the eighteen month presumptive ceiling. There is no basis on these facts to suggest that this was a case that should have completed below the presumptive ceiling. Finally, it should go without saying that if a transitional case can survive scrutiny under the non-transitional Jordan standard, no further consideration needs to be given to the fact that every decision about the scheduling of this case was made before the Supreme Court majority in Jordan upended the status-quo by delivering its blind-siding brave new world of s. 11(b) in the Jordan decision.
This analysis, of course, considers only the period up to Mr. Toor's original trial dates in September and October, 2016. What is to be made of the fact that his trial before me was not scheduled to be heard until mid-December, 2017, after he sought to resile from his guilty plea, was allowed to withdraw that plea and set new dates for trial?
It was suggested to me that the Crown should bear some of the weight of the time period from when Mr. Toor applied to strike the plea to the second trial date. It was inherent in that submission that the Crown ought to have consented to the application and certainly ought not to have opposed it as vigorously as it did, in particular in relation to the examination of Mr. Toor's counsel as part of the application to strike. The need for counsel to testify resulted in the guilty-plea judge considering whether or not an out-of-town judge should be brought in, since a local judge in a small jurisdiction being potentially put in a position to assess the credibility of a local lawyer might be awkward (no out-of-town judge was ultimately involved, but the matter was adjourned briefly while that issue was sorted out). It was suggested to me that the Crown's conduct was particularly relevant as the judge hearing the application to strike the plea relied principally on Mr. Toor's testimony rather than on the lawyer’s testimony. I was not told what crystal ball the Crown should have used to divine what evidence the hearing judge would ultimately consider determinative or surplus on the application. In any event, the idea of defence counsel testifying on an application to strike a guilty plea appears to me to be as unremarkable as the sun rising in the east.
I reject entirely the notion that the Crown should be faulted in any way for its handling of Mr. Toor's application to withdraw his guilty plea. The fact that he succeeded is as irrelevant as any emphasis the judge may have placed on one piece of evidence or another. I do not expect Crown counsel to be prescient in assessing ahead of time either what a defence lawyer will say about his pre-plea discussions with his client or what emphasis a judge will place on one piece of evidence or another. It may well be that a judge finds the application to be made out on the defendant's evidence alone and finds that comment on the evidence of lawyers who routinely appear before him adds nothing to the mix and is best left alone. That outcome hardly lies at the Crown's feet.
I also reject wholeheartedly the idea that the Crown should easily yield to an application to strike a guilty plea. A guilty plea has meaning. It is one of the extremely short list of trial decisions that must be made by the client rather than by the lawyer. Whatever reasons may underlie a defendant's decision, there is no ambiguity between the words "guilty" and "not guilty" and a plea is presumptively valid. That is a very strong presumption and the burden on a defendant who seeks to withdraw his plea is heavy. As I have noted earlier, allowing a defendant to withdraw a plea affects not only the defendant, but also his alleged victims, whose world gets tossed topsy-turvy by the defendant's change of heart. In stark contrast to the submission made to me, I would think that it would be an extremely rare circumstance indeed in which Crown counsel would roll over and accede to an application to withdraw a plea involving alleged sexual misconduct against three young people in a breach of trust situation and where the defendant had not only the advice of his own lawyer but separate, independent legal advice from another very senior defence lawyer.
It should go without saying that I am of the view that the time between Mr. Toor's guilty plea in September, 2016 and his trial date before me in December, 2017 cannot change the outcome of Mr. Toor's s. 11(b) application. Obviously, a defendant is allowed to raise whatever applications he may consider advisable in defending against criminal charges, but he does so with the knowledge that he may not be able to use any ensuing delay to his benefit. The question here is not about fault, but about causation. The time from September, 2016 to December, 2017 was entirely the product of Mr. Toor's decision to plead guilty and his decision to resile from that plea. It matters not precisely how one categorizes what happened in the changing lexicon of s. 11(b). One might call his decision to resile from the guilty plea a waiver of the time taken to resolve that issue and get the case back to trial. One might say that his decision to resile changed the inherent time requirements of the trial. One might call it an exceptional circumstance. None of the verbiage changes the only rational conclusion.
That is not to say that there can never be a circumstance where unconstitutional delay follows from a change of heart or other strategic decision by the defence. For example, suppose that Mr. Toor succeeded on his application to strike his plea and was then offered a new trial date four years in the future. That would be a very different discussion, but it is not the facts of this case. In this case, Mr. Toor's application to strike his plea proceeded apace and his new trial date was given in short order. Even if Mr. Toor's new trial date had not been so prompt, success on his 11(b) application would still have evaded him. It must be remembered that no defendant is an island. He or she is one of many participants in the criminal justice system, all supposedly eager to have a timely trial. Where, as here, the defendant’s choice delays the hearing of his case on the merits, he has no claim to jump the queue or to enjoy any other priority once the case gets back on track. The s. 11(b) decisions about giving priority to trial continuations have no resonance in the circumstances of this case.
It is for these reasons that I dismissed Mr. Toor's s. 11(b) application. I shall now address the case on the merits.
Sexual Assault Offences
Alleged sexual offences comprise a significant portion of this court’s case-load. Such cases have recently taken on a prominent place in the public’s consciousness. Various events have contributed to that consciousness, including disclosures of predatory behaviour preceding the most recent presidential election in the United States, deeply disturbing comments made by a judge in a sexual assault trial in Alberta and the trial of a prominent radio personality in Toronto. There has, understandably, been a backlash arising out of these events, some of it measured, some less so.
There can be no gainsaying the fact that sexual assault is a serious and enduring problem in society. As in the present case, the alleged victims are often vulnerable, whether by their age or by being in some other way subject to the control or influence of their aggressor. The offence continues to carry with it a stigma that reduces the likelihood that victims will come forward with their complaints. Whether a victim comes forward or not, she (or he) will bear the emotional scars of the assault for a very long time. For those who have the courage to come forward, the unpleasant and sometimes insensitive process of a criminal trial awaits them. Given the standard of proof beyond a reasonable doubt and the fact that sexual assault charges, more than most, involve a "he said/she said" dichotomy, a genuine victim is far from assured of vindication in the criminal courts. Given the criminal standard of proof beyond a reasonable doubt, there will be many sexual assault cases in which it is more likely than not that the defendant is guilty, often substantially more likely than not that he is guilty, but where he will be found not guilty because the reasonable doubt standard for a criminal trial is (justifiably) so exacting.
I have referred to unmeasured comments in public discourse about the incidence of sexual assaults and how the courts deal with them. While a commentator's motives may be entirely pure, there is a very real danger that awareness and compassion for victims and a desire to eliminate both sexual predation and outdated stereotypes might transmogrify and contort themselves into corrosion of the basic principles of our legal system, two of which are the presumption of innocence in a criminal trial and the aforementioned standard of proof beyond a reasonable doubt. It is a judge's duty to rid his or her mind of outdated stereotypes and to be alive to issues such as what might be the "normal" reactions of a sexual assault victim (including whether or not there is such a thing as a "normal" reaction); it is also her duty never to lose sight of the fact that she is presiding over a criminal trial and of the presumption of innocence and the burden and standard of proof that govern. There can be no doubt that sexual assault is a great and persistent evil in society, but everyone, not just judges, should remain alive to the exchange that takes place between Sir Thomas More and Roper in Robert Bolt's play A Man For All Seasons. When Roper declares that he would cut down every law in England if that was what it took to get after the devil, More responds in words of perpetual import:
Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
E’s Evidence
There were three complainants against Mr. Toor. E was 17 years old and in high school when she worked for him at the fast-food restaurant. She testified that she was working her second shift when Mr. Toor overheard someone congratulate her on her engagement and asked if she was not too young for that. Mr. Toor then asked about her tongue ring and said he had never known anyone with one; he then stuck his tongue out at her and asked if he could feel how it felt. She said that these comments were within earshot of Mr. Toor's wife, who was in the back of the restaurant with their child. E said she felt that Mr. Toor was hiding none of his behaviour from his wife. She said she had to work and went back to doing just that. At the end of the evening, she said that Mr. Toor told her that he had to show her how to take out the garbage. At the enclosed garbage dumpster, she said he grabbed her, held her hips, grabbed her breasts over her clothes and stuck his tongue down her throat. He stopped when he heard another employee come out the back door of the restaurant. That employee, E said, would have seen E in distress, running from Mr. Toor. She said that when they were back in the restaurant Mr. Toor offered her more shifts, said he would do that again in the future and told her to send her ride home away so that he could give her a ride home instead. E testified that she turned down those offers, grabbed her things and left; she told her boyfriend what had happened on the drive home and then told her parents she was not going to return to work. She called the franchise headquarters the next morning and they told her to call the police. About an hour after that Mr. Toor called her but she did not answer.
E was cross-examined about inconsistencies among various versions she had given of what had happened, such as whether Mr. Toor had said he loved "her" or "it" or whether he said anything of that sort at all. I am satisfied that her failure to mention that in her video statement two weeks later (as opposed to her written narrative the morning after the event) or initially in her testimony before me (more than two-and-a-half years after the event, much of that delay arising from Mr. Toor’s aborted guilty plea) in no way undermines her credibility. It is unrealistic to expect witnesses to be the equivalent of human video-recorders, with perfect recall and absolute consistency in recollection and expression. At a certain point the number and nature of discrepancies in a witness's evidence may create cause for concern, but the nature and number of the "inconsistencies" in E's evidence was entirely untroubling.
B’s Evidence
B was fourteen years old when she worked at Mr. Toor's restaurant. On her second shift, she said that Mr. Toor hugged her as he complimented her for doing a good job, "like a pat on the back". It was a quick face-to-face hug; she did not hug him back. She felt a bit off about it, but not too much. She told her mother.
On her third shift, Mr. Toor sent B to the walk-in freezer to get something. He then came in to the freezer himself and they talked for a few minutes about her work and her performance and he kissed her on the forehead. When he moved to come in and kiss her again, B dodged the kiss and freaked out a bit and Mr. Toor left the freezer. When B's mother picked her up after work, B told her what had happened and her mother said she should call the police. B did not call the police, but her mother did. She was angry with her mother because she liked the job.
In cross-examination, B agreed that it might have been Mr. Toor's wife who sent her to the freezer and that she might have had to go twice because she got the wrong size of cake filling. She agreed that there was no sexual discussion in the freezer. She agreed that she was unsure about the existence of a second kiss when she spoke to the police but said that after reading her statement to them before testifying, she remembered the dodge. She agreed that she had told the police that she was not really sure if he was trying to kiss her or leaning in to tell her something and agreed with Mr. DelGobbo that she was very uncertain. She said that she didn't want to be at the police interview (her mother had taken her on a ruse) and that she thought telling them that Mr. Toor might have been leaning in to tell her something would have ended the matter. In cross examination she agreed, "that I wasn't sure then and am not sure now that he was trying to kiss me", but in re-examination said she was "one hundred percent" sure that he had kissed her on the forehead and that she had dodged him and that she was entirely sure about those things.
B's evidence was not of the same force as E's evidence, but I note that it was the evidence of a seventeen year old testifying about events when she was fourteen.
D’s Evidence
Unlike E and B, D worked longer than a few days at the restaurant, namely for about three to four months starting in March, 2015. She said that she initially felt very happy there and looked up to Mr. Toor, although she felt that his wife, Rupinder Toor undermined and disrespected her at the workplace.
D testified that there was a lot of physical contact between her and Mr. Toor in the last couple of months of her employment. Some of the hugging was appropriate and some inappropriate; some of it she asked for because she saw other people getting hugs. She felt that she saw Mr. Toor engage in some inappropriate hugging of other employees and described two hugs she felt were inappropriate in relation to her. One occurred in the walk in refrigerator: as she walked from the freezer to the refrigerator, she said she bumped him with the door and he hugged her and she "felt" he kissed her. Her statement said it was a kiss on the lips, but it was actually on the cheeks. She said nothing to Mr. Toor about feeling that it was inappropriate but she told some other employees and one of them told Mr. Toor, who told D that if she was uncomfortable with it, she should have told him directly. She agreed that she would tell him directly if anything else bothered her.
The other event described by D was one night when she did not have a ride home and Mr. Toor offered her a ride as it was a three or four kilometre distance. As he dropped her off, she said he put his hand on her shoulder and kissed her on the both cheeks, close to her lips. D said, "I assume he used it as a goodnight, goodbye gesture although it was very inappropriate and made me feel uncomfortable." She was unaware of the duration but said it was probably instantaneous from one cheek to the other.
D kept working at the restaurant after that but did not discuss the incident with Mr. Toor. She agreed that she had written a letter of support for Mr. Toor, at his wife's request and in his wife's presence. The letter was supportive of Mr. Toor returning to the workplace after the charges and D said she ought not to have written it. She agreed that she had earlier described the double kiss in the car as an Italian-style kiss and there was nothing to it and that she had told the police there had never been any other kiss any time, but said that she had denied any other kisses just to avoid conflict, as she had written the supportive letter to avoid conflict. She agreed that she had recently hurt her ankle before the car incident and Mr. Toor had expressed concern about her walking home with an injured ankle that late at night.
D came from a troubled family background that lent some credence to why she would have been guarded with the police and why she might have done some of the things she did. However, her evidence about Mr. Toor's conduct, while raising concerns about judgment on his part, carried less force in demonstrating criminal conduct than the other two complainants.
Mr. Toor’s Evidence
Mr. Toor testified. I shall not dwell on his evidence about acquiring the franchise, recruiting employees and the general structure and operation of the business, all of which struck me as plausible and largely uncontroversial
Mr. Toor testified about the evening giving rise to E's allegations. He agreed that one of the more senior employees had come down sick and said that he drove him home via the drug store rather than having him finish the shift. It was fairly routine for him to offer rides to male or female employees who did not have other arrangements. If his wife was at the restaurant with him at closing, they would give any straggler employees a ride. There was both a practical and an altruistic reason for this. From a practical perspective, if the restaurant was cleaned and shut and Mr. Toor was ready to go home, he did not want to wait around until someone's ride arrived. He was also concerned about the safety of young employees if he left them waiting outside the restaurant after closing.
Mr. Toor said that after returning from giving the sick employee a ride home, E and another employee were still at the restaurant, as were his wife and their daughter. He asked E to clean the washrooms and said she was initially reluctant, but did it. When it came time to take out the garbage, Mr. Toor said that was usually a task for the shift-leader, but the shift-leader had gone home sick so he decided to show E how it was done. He said he did nothing sexual at the garbage enclosure. He said that he had not even been aware that E had a tongue ring until the police mentioned it to him. He never touched her in a sexual way at all, never discussed with her that he loved either "her" or "it" and engaged in no sexual conversation at all.
Mr. Toor said nothing out of the ordinary happened that night other than the shift-leader's illness. The first he knew of anything wrong was on arrival at work the following morning when he received an email from head office telling him of an allegation of sexual assault relating to E. He tried to call her to find out what it was about but there was no answer. He spoke to his area representative who said there was nothing he could do; he recommended that Mr. Toor speak to a lawyer but Mr. Toor said he didn't bother because he had done nothing wrong.
Mr. Toor also addressed B's allegations. He had interacted with her earlier over a delay in a customer's order arising from B's failure to hand the order to the grille employee and had put his arm around her neck telling her jokingly that he would kill her if she made that same mistake. His wife and another employee were present for that encounter. B made a number of other mistakes on that shift and was nervous. He agreed that he was in the freezer with her later, because his wife had asked her to find a cake centre and she could not find it. He reassured her that everything would be fine. He did not kiss her in any way, either on the forehead or trying to kiss her on the lips. He said it was possible she had hugged him in the freezer. B worked out the balance of her shift and did not complain to him.
Mr. Toor said that D was a good worker who appeared to enjoy working at the restaurant, even coming there sometimes on her days off. He recalled giving her a ride home on one occasion when she had shown up to work limping, in pain and crying. He said that he told her there was no point in her being there if she was unable to work and suggested she call her sister for a ride, but neither her sister nor her father was available. At his wife's suggestion, he offered a ride home himself, mid-shift, even though that would leave a position uncovered. It was a short drive and she was crying because of serious issues with family dysfunction. He was in a rush to get back to work to close the grille but did not feel he could rush because of her emotional state. He said that he did pat her on the shoulder but did not kiss her and did not touch any part of her body in a sexual way.
He said he had never kissed D in the freezer, although it was entirely possible he could have been in the freezer alone with her at some time. It was part of his role to make sure the freezer was properly organized and kept stocked.
Mr. Toor did say that he hugged employees at the store and put his arm around them, as a form of congratulatory message. (By "hug" he meant an arm around the shoulder as opposed to a face-to-face, two-armed hug.) He said that D was very comfortable with that, even asking for hugs on occasion. He explained his managerial style against the context of how he and his wife had acquired the business after he had lost his accounting job and said that they had taken on a lot of debt as a result. He had promised a quick payback to family and friends who had lent him money and knew it was important for the business to succeed in order for him to keep those promises. He testified about how he was aware of the restaurant's history and potential and that he knew that morale under the previous owner had been poor, arguably reflected in a substantial decline in the restaurant's income in the years before he and his wife bought it. Employee satisfaction was central to his family's success. His managerial style was modeled on that of the franchise owner from a British Columbia franchise under whom he and his wife had trained. That manager hugged his employees and even hugged Mr. Toor and Mrs. Toor. Mr. Toor's personal imperative to honour his promise to repay friends and family was also reflected in the fact that he was at the business whenever it was open, in order to make sure it succeeded.
Mr. Toor's explanation of these management style issues was entirely believable. His wife's description of their trainer's personal style was consistent with his description.
Mr. Toor stood up well in cross-examination. He was attentive to detail, responsive and non-combative.
Mrs. Toor also testified. She emphasized the importance of collegiality to the success of their business and gave rational and convincing reasons for focusing on hiring younger staff, namely that they would be easier to train and would potentially create less turn-over in staff because they would not age out and go on to college or university so soon. She said they had more female employees than male employees because she finds girls to be more responsible (Mr. Toor had said there were more female applicants). There was support for her explanation insofar as there were still more female employees than male employees at the time of the trial, even though Mr. Toor had been away from the business for two-and-a-half years by then and the franchise was being run solely by Mrs. Toor.
Mrs. Toor's evidence about the atmosphere in the restaurant and the genesis and rationale for that atmosphere was generally consistent with her husband's evidence. Her recollection of events around the time of the various allegations varied in detail, in a way that was plausible. Some details, such as her sitting on a counter with her feet off the floor so as to be out of the way of mopping, were vivid; others, such as the details of B going to the freezer for cake supplies were less so.
A significant concern about Mrs. Toor's evidence arises out of the fact that she told the police that neither she nor her husband had reviewed the restaurant's video footage after being told of E's complaint, but testified under oath that they had both done so with the assistance of a technician. Mrs. Toor testified that in speaking to the police she meant she and her husband had not reviewed the video footage alone and that she "must have" explained elsewhere that they did so once they got the technician to come in and show them how, but that certainty was not buttressed by any specific reference to the interview video.
On the other hand, it was suggested to Mrs. Toor that her credibility about keeping a safe working environment was undermined because she "let" her husband continue to work after they received E's complaint. It is inherent in the suggestion that Mrs. Toor should have presumed guilt on her husband's part. At the same time, even if that suggestion to Mrs. Toor were valid, the same argument could have been made even more strongly in relation to the police failure to arrest Mr. Toor for a fortnight after the event. Likewise, I cannot base any concern about Mr. or Mrs. Toor's evidence on their failure to retain the video footage on the evidence before me. Again, the police, who have somewhat more awareness of the potential value of video footage in criminal cases, appear to have taken no steps to secure any footage that was available. I do not mean by this to impose a perfection standard on the police, only to say that when it comes to arguments like this, sauce for the goose is sauce for the gander.
Mrs. Toor's evidence about being taken away from her husband's bail hearing by the police for an interview – presented as an opportunity to help her husband but more clearly to try to incriminate him – and thereby being absent when her husband's matter was called for bail resulting in his detention until a later date, had the ring of truth to it.
Has The Crown Proved Its Case Beyond A Reasonable Doubt?
This is a criminal trial. Like any person charged with any criminal offence, Mr. Toor is presumed to be innocent. That is the foundation of our criminal law. It protects every one of us and we should all dread the possibility of that presumption ever evaporating. The presumption of innocence can only be overcome if the Crown proves beyond any reasonable doubt that a defendant is guilty.
Mr. Toor has testified. If I believe his denials, I must find him not guilty. If his evidence creates a reasonable doubt about his guilt, I must find him not guilty. Even if I do not believe him and his evidence does not create reasonable doubt, I must ask if the totality of the evidence makes out his guilt beyond a reasonable doubt. That is to say, I cannot proceed directly from disbelieving Mr. Toor or from finding that his evidence does not create reasonable doubt to a conclusion that he is guilty. To follow that path of reasoning would be to up-end the presumption of innocence.
Since this is a criminal trial with the standard of proof beyond a reasonable doubt, I do not decide the case on the basis of whether I find the defence evidence or the complainants’ evidence more credible. That sort of “either/or” reasoning has a proper place in a civil case where the burden of proof is on the balance of probabilities, but it has no place in deciding a criminal case. It is often true that a judge will find a complainant’s evidence to be more believable than a defendants, but that is not enough for conviction.
In the present case, the evidence offered by E was the Crown’s strongest evidence. Had that evidence stood unanswered, it was of such a quality that it would have supported a finding of guilt.
The evidence of B and D was not as robust as E’s evidence. That is not to say that I disbelieve it, simply that E’s evidence was more detailed and powerful and less ambiguous in terms of the legal conclusions that followed from it.
The Crown sought to rely on the similar act principle to apply the evidence of each complainant across counts to bolster the overall strength of its allegations for all of the complainants. The law is clear that evidence of similar acts is presumptively inadmissible, whether the similar act evidence be from one count to another or the application of external evidence to bolster counts. The Crown can overcome that presumption if it can show on a balance of probabilities that the probative value of the similar act evidence outweighs its probative value: R. v. Doodnaught, 2017 ONCA 781, at paragraph 148. If the similar act evidence is admitted on that basis, it forms part of the evidence across counts, with each count then to be determined applying the standard of proof beyond a reasonable doubt.
This case was a close call with respect to the admission of similar act evidence. The number of complainants was relatively small (three), but their ages, gender, employment experience and relationship to the defendant were identical as was the general time frame of the offences. The offences are alleged to have happened in an enclosed area and all involved allegedly unwanted kissing. There are some differences, including the precise location of the events, the extent of the sexual contact on some cases, the presence or absence of suggestive language on Mr. Toor’s part and the presence or absence of his wife in the immediate vicinity. D’s evidence comes temporally after there was talk in the workplace of Mr. Toor being in trouble for some sort of sexual impropriety, so there is a possibility of collusion, although I could not rate it any higher than that on the evidence before me. All of that being said, I was satisfied that the balance of probabilities standard was met. Obviously, having admitted that evidence, I have to keep in mind the strengths and weaknesses reflected in the factors outlined above when determining whether or not any particular charge has been made out beyond a reasonable doubt. Simply stated, the mere admission of a piece (or pieces) of evidence does not guarantee that that evidence will ultimately dictate the outcome of the case.
I also had the evidence of Mr. Toor and Mrs. Toor. As with any witness, I am free to accept all, some or none of any witness’s evidence. This is, then, a case in which there were two strong witnesses, namely E and Mr. Toor, and three witnesses whose evidence was either less robust or more problematic for the reasons outlined above.
E presented a compelling narrative; that narrative was somewhat strengthened by the similar act evidence, although this is clearly nowhere near as powerful a similar act case as the Court of Appeal dealt with in Doodnaught. Against that narrative I have the defence evidence. It goes without saying that it is open to a judge to disregard a defendant’s evidence based solely on the overwhelming force of a complainant’s testimony: see R. v. J.J.R.D., 2006 40088. As Doherty J.A. noted at paragraph 53 of that decision:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
However, when I balance the Crown’s evidence in this case against the evidence of Mr. Toor and his wife, I cannot safely say that the Crown’s evidence from E, buttressed by the similar acts, is sufficiently powerful entirely to displace the defence evidence. At a minimum, I am left with a reasonable doubt about Mr. Toor’s guilt, even though E’s evidence may very well be true.
- I have spoken above of the force of the Crown’s case in relation to the evidence of Mr. Toor’s alleged offences against E, buttressed as E’s evidence is to some extent by the similar acts. E’s evidence was the strongest of the three complainants. It follows, therefore, that I cannot reasonably find Mr. Toor guilty of the offences he is alleged to have committed against B and D.
Conclusion
- It is for these reasons that I dismissed Mr. Toor’s application to have the charges stayed for delay under s. 11(b) of the Charter of Rights and Freedoms and subsequently found him not guilty of those charges.
Released: 29 August, 2018
Footnotes
- There is a s. 486.4 Criminal Code publication ban in place prohibiting the publication, broadcast or transmission in any way of information that could identify the complainants in this case. Any violation of the publication ban is a criminal offence, punishable by imprisonment.
- R. v. Askov, 1990 45 (SCC); R. v. Morin, 1992 89 (SCC).
- A trial court is bound, but not gagged by an appellate court’s decision. Indeed, most of the flaws in the Jordan decision have already been raised, in the dissenting judgment of four judges of the Supreme Court.