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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: December 13, 2023 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
AKRAM ELMURADI
Before: Justice T. Lipson
Reasons for Judgment released on December 13, 2023
Counsel: Ms. L. Liston, for the Crown Mr. M. Ertel, for the accused Akram Elmuradi
LIPSON J.:
REASONS FOR JUDGMENT
1Akram Elmuradi entered a plea of not guilty to a charge of sexually assaulting B.D., contrary to section 271 of the Criminal Code.
2The defence concedes that Mr. Elmuradi engaged in sexual activity with B.D., but that he did so with her consent. Mr. Ertel stipulates that Mr. Elmuradi does not rely on the defence of honest but mistaken belief in consent. Counsel agree that the verdict in this case hinges on the court’s assessment of the credibility of the two main witnesses, B.D. and Mr. Elmuradi, but always bearing in mind the Crown’s burden to prove guilt beyond a reasonable doubt.
Overview of the case
3The following facts are not in dispute.
4At the time of the January 15, 2022 incident giving rise to the charge, Mr. Elmuradi was part owner of Neuromotion Therapy Clinic in Ottawa. This is a rehabilitation clinic where licensed chiropractors, physiotherapists and massage therapists provide various treatments to its clients. Mr. Elmuradi is neither licensed nor qualified to engage in any of these areas of health practice. His day-to-day role at the clinic was to attend to administrative duties such as scheduling appointments and paperwork.
5B.D. is thirty-four years of age. She has been employed as a personal support worker and is currently a university student. Like many clients of the clinic, the complainant sought treatment for a back injury stemming from a motor vehicle accident. B.D.’s mother was also a client at the clinic for the same reason. B.D. started going for treatments at Neuromotion in late November 2021. A typical visit for B.D. consisted of 10-minute sessions with a chiropractor, physiotherapist, and massage therapist. Her massage treatments focused on upper back and left shoulder. She was never required to remove her pants for the massages. B.D. said she attended the clinic once or twice a week and found her licensed caregivers to be both professional and friendly.
6B.D. met the defendant along with the co-owner Ozzie at an initial meeting she attended with her mother. She said that Mr. Elmuradi then made a point of seeing her before or after each of her appointments at the clinic. He would usually discuss her progress. As well, he would touch her back where she told him the pain was severe. He would also perform “adjustments” upon B.D. such as “back cracks”. Sometimes Mr. Elmuradi would put his arms around her torso and “crack [her] back”. Sometimes she would remain seated or be required to stand up during these so called “adjustments”.
7There was no personal relationship or friendship between B.D. and Mr. Elmuradi prior to the incident giving rise to the charge.
8A short time before the date of the alleged offence, B.D. complained to Mr. Elmuradi that her back was not improving. The defendant offered to give her a hot stone massage, which B.D. accepted. Her appointment was set for Saturday morning January 15, 2022.
9There is no dispute that a massage took place in the morning of January 15, 2022.
10Mr. Elmuradi massaged B.D.’s back, neck, shoulders legs and buttocks. B.D. was on her stomach and turned on her back for a portion of the massage. Early in the massage, the defendant asked B.D. for permission to remove his dress shirt. He was wearing a tank top t-shirt under his dress shirt.
11During the massage, Mr. Elmuradi performed oral sex on the complainant for several seconds. The massage then continued for about ten minutes. Once it was completed, B.D. left the clinic. Some text messages were exchanged following the massage and were filed as exhibit 3.
12B.D. kept the underwear she wore during the massage and provided them to police. There is no dispute that Mr. Elmuradi’ s saliva was present on her underwear. This was confirmed by expert DNA opinion evidence and biology reports, filed as exhibits 1 and 2.
13I now turn to a summary of the evidence provided by B.D. and Mr. Elmuradi concerning the incident.
B.D.’s version
14B.D. testified that she met the defendant in November 2021 along with his business partner Ozzy. .B.D. said “they told me they both owned the clinic and that Akram said he was a physiotherapist, psychologist and massage therapist.”
15As indicated earlier, B.D. complained to Mr. Elmuradi that despite the treatment she had been receiving, her back was not getting better. He offered her a hot stone massage and told her that he was the only one at the clinic who provided this service. She thought this was going to be a strictly therapeutic massage that would help her back to improve. She believed he was a licenced therapist and that the massage was covered by her insurance.
16The appointment was scheduled for Saturday morning January 15, 2022, at 10 a.m. The clinic was closed and empty. She was met inside the clinic by the defendant who directed her to the massage room and asked her to change. She put on a hospital gown and, as she always had done at the clinic, left her pants on. The defendant told her to remove her pants because he said he wished to work on her legs, and this would help her back. She complied with his request and removed her pants for the massage.
17B.D. was covered in a towel and wore only her underwear. At first, B.D. was on her stomach and the defendant put hot stones at different locations of her back. After a few minutes, Mr. Elmuradi asked if he could remove his buttoned-up dress shirt. She did not object and the defendant removed his shirt. Underneath, he was wearing a tank top shirt, which B.D. referred to as a “wife-beater muscle shirt”. This struck the complainant as unusual since her massage therapists at the clinic always wore medical scrubs. Also, she noticed that the massage was taking much longer than usual. Mr. Elmuradi’s massage technique also concerned the complainant. He was massaging her legs, thighs and waist areas by making circular motions with his elbow and forearm. He used this technique on her legs and near her crotch area.
18The defendant then asked B.D. to flip over on her stomach. He massaged her thighs and crotch area. He then lifted up her underwear with his fingers and placed his face in her crotch. He put his tongue on her vagina and licked her for her about five to six seconds. When she realized what was happening, B.D. told him to stop six or seven times. He did not stop, and she had to physically push his head away. She knew that his tongue was on her because the physical sensation of his wet tongue “made it very obvious”. Her eyes had been closed and she felt very scared. When this happened, the hot stones were no longer on her body. Initially, when his tongue was on her vagina, she became aroused. B.D. also said that she was more upset and scared than aroused.
19After she pushed the defendant’s head away, Mr. Elmuradi apologized and said he was sorry a couple of times. He told her “I thought you wanted this. I thought this was ok.” He continued to massage B.D. for another ten minutes. B.D. explained that she did not leave right away after the oral sex. She said that “for my mental sake, I was trying to normalize it and believe it was a normal massage and that it’s ok, it’s over, just get out.” He then told her that the massage was over and to get dressed. She did and left the clinic.
20Minutes later he texted her that she had left her socks at the clinic and that he would keep them for her to pick up. She thanked him. B.D. explained that she was trying to normalize in her brain what had occurred at the clinic.
21B.D. reported the incident to her sister-in-law and then the police. She went for one further appointment at the clinic. The defendant attempted to speak to her, but she did not want to.
22B.D. said that she never consented to any sexual contact with the defendant nor gave him any reason to believe that she was consenting to sexual activity.
Mr. Elmuradi’s version of events
23Mr. Elmuradi told the court that he is a co- owner of the clinic. He is not a registered massage therapist. He said he never told B.D. that he was a licenced massage therapist or any other kind of health care specialist. His role was to manage the office, schedule appointments and tend to other administrative duties. Mr. Elmuradi said that B.D. was aware that he did not personally provide therapeutic treatment. He admitted that she would come into his office and complain about her back pain. Mr. Elmuradi admitted giving her “adjustments” even though he had no training or professional qualifications to do so. He said he did that because he “owned the business.”
24Mr. Elmuradi offered to give B.D. a hot stone massage “just for relaxation”. He said he also told her this would be free of charge. Mr. Elmuradi said that he was willing to do this because he was doing this on his time off on the weekend and it was something he liked to do.
25Mr. Elmuradi testified he met the complainant on Saturday morning January 15, 2022, when the clinic was closed. He denied that he directed her to remove her pants. She had already done so, without prompting, before the massage began. Mr. Elmuradi was wearing a long sleeve button up shirt and asked B.D. if he could take it off. She agreed. He was wearing a T-shirt underneath. Mr. Elmuradi first massaged her as she lay on her stomach. He massaged her from her from her neck downward. He massaged her buttocks and admitted that he massaged B.D. close to her crotch area. As he did so, he heard her moaning in a sexual manner. B.D. then, on her own, started to take off her underwear. Mr. Elmuradi helped her to completely remove her underwear which he then threw on a nearby table. B.D. then turned on her left side and lifted her leg, exposing her vagina to him. He then licked her vagina for a few moments. He said he stopped because he “didn’t like the smell.”. He then continued the massage for a few more minutes. When the massage was completed, she got changed and left the clinic.
26Mr. Elmuradi said B.D. communicated consent to sex by her sexual moaning and the fact that she lowered her underwear. She never told him to stop, nor did she ever push him away. He said that the sexual activity resulted from an “attraction between a boy and a girl.”
Applicable Legal Principles
27In their submissions, counsel accurately described the applicable legal principles in this case. They can be summarized as follows:
Elements of the Offence of Sexual Assault
28A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or willfully blind to, a lack of consent, either by words or actions, from the person being touched. [1]
29The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred. [2]
30“Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” and it must be freely given. This consent must exist at the time the sexual activity in question occurs and it can be revoked at any time. Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” [3]
31Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place.” Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple. At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established. [4]
32While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [5]
33The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. [6]
34In cases such as this one, the question is not whether the accused person behaved admirably, or even ethically. The question is whether the trier of fact is satisfied beyond a reasonable doubt that the Crown has discharged its onus of proving that the complainant did not consent to the sexual activity at issue. [7]
Credibility
35Mr. Elmuradi testified and, as a result, the principles in W.(D.) apply.
36If I believe Mr. Elmuradi’ s evidence , I must find him not guilty. Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty. Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
37I must keep in mind that Mr. Elmuradi, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". [8]
38This is a very high standard, and it is so high for very good reason. As Cory J said in R. v Lifchus:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted. [9]
39A proper conviction can be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution. However, this is only the case where a trier of fact finds that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt. [10]
40I am also mindful that the credibility of the complainant must not be tainted by reliance on myths or stereotypes about how a victim would be expected to behave. For example, there is no requirement on a complainant to flee in a sexual assault case. As well, I do not construe physical arousal as experienced by B.D. in this case as necessarily indicating consent on her part. I will have more to say on this aspect of the evidence later in these reasons.
Analysis and Findings
41Counsel for Mr. Elmuradi submits that the only defence raised in this case is consent and not mistaken belief in consent. The court is required to engage in an assessment of the credibility of B.D. and Mr. Elmuradi, always bearing in mind the heavy burden of proof resting upon the Crown to prove its case beyond a reasonable doubt.
42Mr. Elmuradi is presumed innocent and is not required to prove anything. The case cannot be reduced to a credibility contest or a determination of who was the more believable witness.
43I start by indicating that the evidence does not clearly establish that Mr. Elmuradi personally told B.D. that he was a registered massage therapist. I am satisfied that it is more likely than not that he did, but I am unable to conclude whether it was Mr. Elmuradi or his partner Ozzie who said this to the complainant in the presence of the defendant. Whether it was the defendant who told B.D. this or was present when Ozzie made this false claim, I am satisfied that Mr. Elmuradi intended to leave the complainant with the false impression that he was a health care professional.
44Mr. Elmuradi was not a registered massage therapist or any other type of licenced health care professional. I am also satisfied that Mr. Elmuradi took steps to deceive the complainant into believing that he was. I accept the testimony of B.D. that Mr. Elmuradi “made sure” that he saw her whenever she attended. His interest in her was personal, rather than clinical.
45In testimony, Mr. Elmuradi did not dispute that he made it a point to see B.D. whenever she had an appointment at the clinic. He said he did so because he was the owner of the clinic. This explanation was neither responsive, reasonable nor credible. From the outset of their relationship, Mr. Elmuradi sought to actively gain the confidence and trust of B.D. that he was a professional health care specialist.
46I accept the evidence of B.D. that she complained to Mr. Elmuradi that her back was not improving. She accepted his offer of a hot stone massage because she thought it would provide a therapeutic benefit. B.D. also believed that that, like all of her treatments, the hot stone massage would be covered by her insurance. She had no personal interest in Mr. Elmuradi. I am satisfied that Mr. Elmuradi was seeking to create an opportunity to have a sexual encounter with B.D.
47To that end, Mr. Elmuradi deceived the complainant. He told her that he was the only person at the clinic qualified to give a hot stone massage. In his testimony, Mr. Elmuradi conceded that he had no professional qualifications to perform hot stone massage or any other kind of massage. Everything he knew about hot stone massage was learned from watching YouTube videos. I believe B.D. that she trusted the defendant and believed he was trying to help her. I reject the testimony of Mr. Elmuradi that the hot stone massage was simply for “relaxation” and there would be no charge. I am satisfied that B.D. would never have agreed to a free hot stone massage from the defendant had she known he had no professional qualifications as a massage therapist. She was naive in this regard and the defendant sought to capitalize on her naivete.
48Over the course of two months from the time B.D. enrolled at the clinic, Mr. Elmuradi managed to gain B.D.’s full trust. This was clearly demonstrated when B.D. put aside her concerns that the massage appointment was on a Saturday when the clinic was closed and no one else, except Mr. Elmuradi, was there. Another concern she put aside regarded his request that she remove her pants for the massage. The defendant told her that a full body massage would help her back pain and she believed him. B.D. also put aside her concern that the massage was taking far longer than her typical massage at the clinic. She also wondered why Mr. Elmuradi was not wearing the medical scrubs that other massage therapists wore at the clinic. B.D. also put aside her concern that Mr. Elmuradi’ s massage technique was very different and more intimate than what she was used to at the clinic. I am satisfied that B.D. put aside all of these “red flags” raised in her mind because she trusted B.D. to be professional and appropriate.
49I accept the evidence of B.D. that when the defendant massaged her near her crotch area, she became frightened.
50Mr. Elmuradi claimed that as he massaged her buttocks, B.D. willingly and spontaneously pulled down her underwear and that he assisted her in completely removing them. She then turned on her side and lifted her leg, exposing her vagina to him while she was moaning with desire. He said he then proceeded to lick her vagina. Mr. Elmuradi claimed during cross-examination that, in the circumstances he found himself , performing oral sex on B.D. was an appropriate thing to do. Mr. Elmuradi claimed that all of this happened spontaneously. He said, “it was not something I planned for”.
51I do not believe Mr. Elmuradi’s account of the incident, nor does his evidence leave me in reasonable doubt. As I indicated earlier, the defendant engaged in a pattern of deceitful conduct designed to set up an opportunity to have a sexual encounter with B.D. at a time when she was in a highly vulnerable position – prone and almost completely naked on a massage table in Mr. Elmuradi’s empty clinic. The DNA evidence of Mr. Elmuradi’ s saliva on B.D.’s underwear is, of course, compelling evidence that he licked her crotch area as she claimed. His explanation as to how that happened is, in my view, a fanciful tale of consensual sex that is implausible and incredible.
52B. D’s testimony was detailed and candid. She told the court that when she felt the defendant’s tongue on her vagina, she experienced a moment of sexual arousal. I accept B.D.’s testimony that this was a brief and involuntary physical reaction to the stimulation she was experiencing at the time. In my view, this initial physical reaction does not demonstrate consent on her part. I accept her testimony that when she realized what Mr. Elmuradi was doing to her, she told him to stop a number of times and had to shove his head away from her crotch. I also believe her evidence that Mr. Elmuradi apologized immediately after she did this.
53It is common ground that following the oral sex incident, the massage continued for several minutes. One might ask why B.D. didn’t immediately leave the massage table? B.D. explained that she was scared, feeling uncomfortable and trying to “normalize” what had just happened to her. I found her explanation to be entirely credible. I keep in mind that there is no prescribed way that a victim of a sexual assault is supposed to behave. Different victims react differently.
54There was evidence that shortly after the incident, Mr. Elmuradi texted B.D. that she had left her socks at the clinic and that he would keep them in safe keeping. She replied “that’s ok. Thank you so much.” B.D. explained that she said this out of fear, that the defendant had “a big power on me and I was trying to normalize my mental state” as to what had happened. I believe and accept her explanation for the text messaging with Mr. Elmuradi after the incident as being reasonable.
55In argument regarding the credibility of B.D., defence counsel fairly pointed to the fact that she made inconsistent statements about whether Mr. Elmuradi personally told her he was a massage therapist. In examination in chief, B.D. said this. In her police statement, B.D. said that when she met with the defendant and his partner, “they” told her he was a massage therapist, psychologist and chiropractor. In cross-examination, B.D. maintained that the defendant told her this but that he did so in another conversation they had. It was argued that these inconsistencies seriously undermine B.D.’s overall credibility.
56I have carefully considered the defence argument. In the end, I do not find that B.D.’s inconsistency on this particular issue undermines her credibility as to whether she was sexually assaulted. What is important is that she had heard the false information about Mr. Elmuradi’s supposed qualifications from either the defendant personally or from his partner Ozzie in Mr. Elmuradi’s presence. She believed the defendant was qualified to give her back adjustments and massage therapy. The defendant knew that B.D. believed he was qualified to provide therapeutic massages and continued to fraudulently played that role.
57Mr. Elmuradi’ s credibility is undermined by not only the implausibility of his account of events but also by the series of deceitful acts he took to fool B.D. into believing that he was a bona fide massage therapist. I am satisfied on the evidence that he did so in order to take advantage of her sexually. I do not believe Mr. Elmuradi that B.D. consented to sexual activity with him. Nor does his evidence leave me in reasonable doubt. He agreed there was no personal relationship of any kind with B.D. His version that she spontaneously slid off her underwear and invited him to perform oral sex on her is not believable nor does it raise a reasonable doubt.
58I accept the evidence of B.D. Apart from her difficulty remembering when Mr. Elmuradi told her he was a massage therapist, B.D.’s testimony was entirely candid, consistent and credible. She provided detailed testimony about the massage and, in particular, how she expressed her lack of consent to Mr. Elmuradi. There was no personal relationship between B.D. and the defendant. She was unaware that she was being duped by the defendant into believing he was a qualified and licenced massaged therapist. Had she been aware of his manipulative and deceitful behaviour leading up to the January 15, 2022 incident, there can be no doubt that B.D. would never have agreed to receive a massage from the defendant, someone with whom she had no personal relationship and was not a qualified massage therapist.
59Upon a consideration of all of the evidence, I am satisfied beyond a reasonable doubt that the Crown has proven that B.D. did not consent to sexual activity with Mr. Elmuradi. I am satisfied beyond a reasonable doubt she that never invited any sexual contact from the defendant and that B.D. communicated her lack of consent to Mr. Elmuradi when she realised that he was sexually assaulting her. I am satisfied beyond a reasonable doubt that Mr. Elmuradi engaged in unwanted oral sex with the complainant and that he knew it was unwanted.
60He is guilty of sexual assault.
Released: December 13, 2023 Justice T. Lipson
Citations
[1] R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 23. [2] Ibid. at paras. 25 and 26. [3] R. v. Barton, 2019 SCC 33 at para. 88. [4] Ibid.. at para. 89. [5] Ewanchuk, supra at paras. 29 and 30; R. v. Roth, 2020 BCCA 240 at para. 100. [6] Ibid. at para. 42. [7] Ibid. at para. 199. [8] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242. [9] R. v Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13 [10] R. v. C.L. 2020 ONCA 258 at paras. 30 and 38 [emphasis added].