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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. Foster, 2024 ONCJ 664
DATE: 2024 12 23
COURT FILE No.: Sudbury 23-40100521
BETWEEN:
HIS MAJESTY THE KING
— AND —
WAYNE FOSTER
Before Justice G. Jenner
Heard on August 13 and 14, 2024
Reasons for Judgment released on December 23, 2024
Jason Nicol.......................................................................................... counsel for the Crown
Joanne Mulcahy................................................... counsel for the accused Wayne Foster
Contents
I. Introduction. 3
II. General Legal Principles. 3
III. Analysis of the Evidence. 4
A. NL’s version of events. 4
NL’s employment with GSPS. 4
NL’s rapport with Mr. Foster. 5
The incident in the elevator. 6
Subsequent events. 6
B. Mr. Foster’s denial 7
Mr. Foster’s career and roles at GSPS. 7
Knowledge of NL. 7
Response to the allegation. 8
Position on subsequent events. 8
C. Assessing the evidence. 8
NL provided compelling evidence. 8
Foundations of NL’s cross-examination. 10
Newly disclosed details. 10
Internal consistency: differences or contradictions. 11
Purported areas of contention with other evidence or common sense. 16
Motive to fabricate. 21
Remaining issues pertaining to Mr. Foster’s evidence. 22
Identification. 25
IV. Conclusion. 27
REASONS FOR DECISION
I. Introduction
1Wayne Foster is charged with sexually assaulting NL on August 24, 2007. Mr. Foster was working as a police officer with the Greater Sudbury Police Service (GSPS). NL was working as a summer student with the GSPS. She was 17 years old. The Crown alleges that on the last day of her summer employment, NL found herself in an elevator alone with Mr. Foster when, without her consent, he pushed her against the side of the elevator, kissed her forcibly, slid a hand down her pants, and pushed a hand up her shirt. Mr. Foster denies the assault. He denies any relationship with or having a specific memory of NL.
2At trial, only NL and Mr. Foster testified. Several agreed statements of fact (ASFs) were filed on consent. The evidence permits no reasonable inference that the alleged touching was consensual or that Mr. Foster held a mistaken belief that it was. There is likewise no inference available that the touching described was not sexual in nature. The case thus revolves entirely around issues of credibility and reliability. Has the Crown proven beyond a reasonable doubt that the alleged conduct occurred, and that it was perpetrated by Mr. Foster?
II. General Legal Principles
3In considering whether the Crown has met its onus, I must be guided by several important legal principles.
4The accused is presumed innocent and bears no onus to prove anything at any stage in this trial. The Crown bears the onus to prove the accused’s guilt beyond a reasonable doubt.
5Reasonable doubt is not based on sympathy or prejudice, but rather on reason and common sense, and is logically connected to the evidence or absence of evidence. It is not proof beyond any doubt and is not proof to an absolute certainty. It is virtually impossible for the Crown to prove anything to a degree of absolute certainty, and the Crown is not held to that unrealistic standard. But the standard demands more than proof that the accused is probably guilty. The requisite standard falls much closer to absolute certainty than a balance of probabilities: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
6Ultimately my task is to consider whether the evidence as a whole leaves me with any reasonable doubt about the guilt of the accused. This is a case in which the court heard exculpatory evidence on the part of the accused, but a criminal trial is not a credibility contest. The question is not whether I prefer one witness’s account over another’s. Lack of credibility on the accused’s part does not equate to proof of guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, at para. 13. I must, rather, be guided by the principles articulated in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742: (i) if I accept the evidence upon which the defence relies, I must acquit; (ii) if I do not accept that evidence, but it leaves me in a state of reasonable doubt, I must acquit; (iii) I must nonetheless acquit unless I am satisfied of guilt beyond a reasonable doubt based on the evidence I do accept, considered in the context of the evidence as a whole.
7In assessing the evidence, I may accept all, some, or none of a witnesses’ testimony: R. v. H.(S.M.), 2011 ONCA 215. I must ensure that I do not bring divergent standards of scrutiny to the evidence of the Crown and the defence: R. v. Phan, 2013 ONCA 787, at paras. 29-34. I must also avoid a piecemeal approach to the evidence. The standard of proof beyond a reasonable doubt does not apply to individual items of evidence, but only to the court’s final determination as to guilt based on the essential features of the offences charged. Moreover, while I have organized my discussion around certain themes and areas of contention, I must remain mindful that these issues are not ultimately to be considered in silos. I must consider these issues in the context of the evidence as a whole. For example, in assessing credibility and reliability, I must still consider the cumulative impact of issues or factors that might have little impact individually.
8I must also caution myself concerning the demeanour of witnesses. I am permitted to consider a witness’s demeanour in assessing their credibility—indeed, both parties in this case urged me to rely on demeanour, to divergent ends—but placing undue weight on it or allowing it to be a controlling factor is dangerous: R. v. E.H., 2020 ONCA 405, at para. 91. I should be particularly cautious about relying on emotional upset as an indicium of truthfulness, given that emotional presentation varies by witness, and I lack a baseline for evaluation: R. v. Reimer, 2024 ONCA 519, at para. 93.
III. Analysis of the Evidence
9I will begin by reviewing the core accounts of the two witnesses, before shifting into an analysis of certain specific areas.
A. NL’s version of events
NL’s employment with GSPS
10At the time of the alleged event, August 24, 2007, NL was a 17-year-old summer student employee with the GSPS. It was her second summer in that programme. Typically, the programme would involve university students, but NL had demonstrated an interest in policing from the age of 14, had networked with some community leaders in policing at programmes and events, and was invited to participate. She was one of five or six students each year. During the summers of 2006 and 2007, she worked out of the GSPS headquarters on Brady Street.
11During her employment in 2007, she was assigned to what she termed “stores and property.” Her responsibility was primarily in “stores.” NL’s duties involved assisting in distributing gear to new officers and providing employees with office supplies like note pads and pens. This involved making purchase orders with an office supply store and attending that store on occasion. She spent most of her time at the police headquarters, delivering and organizing. NL’s 2007 summer work schedule was made an exhibit on consent. She generally worked weekdays from June 19 to August 24.
NL’s rapport with Mr. Foster
12It was during her 2007 summer employment that NL came to know Mr. Foster, who was working as a detective. As part of her duties delivering supplies, NL spoke to many officers. She described herself as a chatty, outgoing person. She and Mr. Foster spoke frequently. There was flirtation between them. He took a lot of interest in her life. One of the first times they spoke, she was wearing a jersey or shirt with her high school logo on it. They discussed how the accused’s son attended the same school. NL did not know his son from school, despite her being heavily involved in extra-curriculars. She initially described speaking with the accused every day, with topics ranging from family to sports, to her future education. As I will explore further, her frequency of contact with Mr. Foster, and her opportunity for such contact, was a contentious issue.
13NL described one occasion where she was in a lunchroom at work, listening to music. Mr. Foster asked her what she was listening to. He was leaning on a table, and she was sitting in a chair. She gave him her earphones so that he could listen to the song, which was sexually explicit in nature. He expressed that he did not know “she listened to that” and said he “wanted to do that”. His comment made her uncomfortable. She did not know what to do so she giggled.
14When asked in direct examination what her frequency of contact was with Mr. Foster, she responded “any time that he was really in the office… because almost everyday [she] had to deliver stuff.” Any time they would see each other they would chat for a bit. Sometimes it was just a hello or a nod. During her employment, they never had any interaction off-site or off-duty. They did have some digital contact. At times he would say hello to her on an internal instant messaging platform that employees could use. She did not use that platform too often, as she and another student shared one computer.
15Asked about the tenor of her relationship with Mr. Foster, NL testified that he made her feel very comfortable at work. A lot of others would brush the students off, but Mr. Foster made her feel important. She would sometimes be excited to speak with him.
16That changed on her last day of summer employment.
The incident in the elevator
17NL testified that on her last day of work, August 24, 2007, at the end of the workday, she was going through the various levels of the building to say her goodbyes to colleagues. This would have been around 4:30 pm. She saw Mr. Foster, told him it was her last day, and said goodbye to him in front of other people. This occurred on the fourth or fifth floor. NL then went to the sixth floor to say goodbye to colleagues in the IT department. After that, NL got back on the elevator. Someone she could not identify got on and then off the elevator. As that individual alighted, Mr. Foster entered the elevator. She was not expecting to meet him there. About 15 minutes had passed since she had said goodbye to him. The two now found themselves alone.
18When Mr. Foster entered, he looked at NL. He placed one hand against her hip and pushed her against the side of the compartment. Then he placed his body against hers and kissed her forcibly. He then slid one hand down her pants—inside the pants but outside of her underwear—and cupped her vagina. She was wearing tighter dress pants. She was not sure if he meant to slip his hand inside her pants, but that is where it went. He put his other hand up her shirt. She was wearing a blue blouse. He grabbed her breast. She remembers her stomach being exposed. She believes he touched her breast under her bra because she had to readjust it afterwards.
19NL was shocked. She did not say stop. She just turned her head to the side. She described feeling as if time had stopped, though also explained that it must not have lasted very long; just the time it would take the elevator to go from the fourth or firth floor to the ground floor. She remembers looking at the side of the elevator and seeing a sort of scorched or swirly metal area, as if it had been sanded. She focused on that spot. His body continued to press against hers. She froze. She did not say yes, and she did not say no. Mr. Foster then pulled himself off her and adjusted his clothes. The doors opened and he said that he would see her next summer. She did not move. The doors shut. She grabbed the side of her bra to pull it down, and when she opened the doors, she walked outside to go to her mother, who was meeting her outside to pick her up.
20NL testified that she did not consent to the touching.
Subsequent events
21NL testified that after completing her summer employment in 2007, NL attended university in St. Catharines, Ontario, and lived off-campus. In the fall of 2007, she received an email from Mr. Foster. She remembers sitting on her bed when she checked her email and noticed it. His email explained that he would be coming to the Toronto area, and asked if he could take her to dinner in Niagara Falls and have sex with her. The email was short. Mr. Foster ‘said hey’, asked how school was, told her he was thinking of her, and that he would be down south soon for a conference for work. They could get a hotel room in Niagara Falls. He asked her whether she had ever “been fucked by a black man” (Mr. Foster is a black man).
22Her receiving email address was [redacted personal email address 1]. She could not recall what email Mr. Foster was using, except to say that it was a personal one, not a GSPS address.
23When asked if she could be more specific as to when she received the email, she explained she believed it was sent in the first weeks of November. She recalled that it was after Thanksgiving, because she had visited her parents for the holiday, and returned to school with several lasagnas her father had made for her. She was eating one of the last remaining lasagnas when she received the email. She also indicated it was after Hallowe’en, though her explanation for that detail was not elicited until cross-examination, when she explained that at the time she received the email she remembers her discarded Hallowe’en costume being in a crumple in the corner of her bedroom.
24NL did not respond to the email. She was fearful, as Mr. Foster was a police officer, and she was not sure how he would have gotten her email. She was concerned he would be able to find her current address. She stopped using her personal email address within a couple of weeks and deleted the account. NL theorized that Mr. Foster had her email address because the GSPS had it. It would have been on her resume and in her human resources file.
25NL returned to work with the GSPS in the summer of 2008, but requested to work at a different site. She wanted to quit but did not know how to explain the reason to her parents. She requested to work at the courthouse and became a court coordinator. During the remainder of her employment with GSPS, she never encountered Mr. Foster professionally. She saw him again years later when she was in her early twenties; sometime before 2014. She was at a Metro grocery store in Val Caron with her then-boyfriend. She described rounding an aisle and seeing a bald head, then recognizing the accused.
B. Mr. Foster’s denial
Mr. Foster’s career and roles at GSPS
26Mr. Foster explained that he began his policing career in 1984 with Peel Regional Police, and after four years moved to Sudbury to join the GSPS.1 He identifies as a black man. When he joined the GSPS, he was the first black officer and the only one for five or six years. He retired in 2015 after 31 years in policing.
Knowledge of NL
27The first time Mr. Foster was asked to recall the events of 2007 was in 2022 when he learned of the charges. He had a very limited memory of NL. When the Special Investigations Unit (SIU) advised him of the name of the complainant in their investigation, he did not recognize the name. When he searched the name online, an image he found looked vaguely familiar as someone who would have worked at GSPS at some point during his career. Under cross-examination he maintained that he only had a vague memory of her. He agreed that summer students would have been in the building, distributing office supplies and functioning as delivery people. He would probably speak with some in passing. He agreed that there would be occasions when he would need to attend “stores or properties”, where NL was based, but denied that he had any need to do so during the relevant timeframe. If he did attend there, he would speak to whoever was at the counter. He agreed that he may have had contact with students that he simply no longer remembers.
28Mr. Foster denied having an interest in soccer during that timeframe and denied ever speaking to NL about soccer, music, or her career aspirations. He had no recollection of seeing her in a school jersey or shirt and noted that a jersey would not have been acceptable dress. He denied that there was an occasion when NL shared music with him in a lunchroom. He stipulated that he would find sharing a headphone to be gross.
29He confirmed that his son’s name was K,2 and that K attended [redacted high school]—NL’s school—but denied ever telling NL K’s name or speaking with her about him in any way. He did suggest that as his son is mixed-race, there were few black people in Sudbury, and Foster is not a common surname locally. It would not have been hard, he suggested, for NL to figure out that K was his son. K was also proud of his father. If you knew K, Mr. Foster suggested, you knew his father was a police officer.
Response to the allegation
30Mr. Foster denied ever seeing NL during her goodbye rounds. He denied taking the elevator ride she described. He denied pushing her, sliding his hand down her pants, kissing her, or sticking his hand up her shirt. He completely and forcefully denied the allegation of sexual assault.
31Referring to his police notes or memo book, Mr. Foster recalled that on the day in question he was away from GSPS headquarters between 2:10 pm and 3:20 pm. Around 4:30, the time he initially understood the allegation to relate to, he would have been doing office duties. He said he would not have been in the elevator around that time.
Position on subsequent events
32Mr. Foster testified that he attended a conference in the Peel region in the fall of 2007. It was at the Stage West Hotel, in Mississauga from November 14 to 16, 2007. But he denied sending an email to NL about the conference. He also indicated he did not use a personal email in 2007.
33Mr. Foster testified that he would not know whether NL may have seen the back of his head at a grocery store in 2014. He did point out he has no recollection of any such grocery store on Highway 17 East.
C. Assessing the evidence
NL provided compelling evidence
34NL delivered her evidence in a fair manner. But for one instance of defensiveness—discussed elsewhere in these reasons—she demonstrated an even approach to her direct and cross-examinations. She made reasonable concessions. She did not profess to have a perfect memory. Where there were differences in her evidence, or differences between her evidence and prior statements, she acknowledged them. When she could explain them, she did. When she could not, she was frank about it.
35At points in her testimony, she was able to explain how she pieced together certain details from dated events. For example, her memory of the timing of the email was backed up by a process of reasoning: she remembered the lasagnas from home after Thanksgiving and the discarded Hallowe’en costume. At another point, she explained that she believed Mr. Foster touched her breast under her bra because she had to readjust it after. NL struck me as a witness who was engaged in an honest effort to reconstruct events.
36There were other details in NL’s evidence that stood out to me. NL’s description of the scorched metal area that she fixed on during the brief assault struck me as something out of place in false account. Additionally, she was not sure whether Mr. Foster intended to slip his hand inside her pants. This is an odd concession to include if the allegation was fabricated.
37NL’s account being true would also explain why, after two summers as a student at GSPS Headquarters, she would switch to work at a different location within the organization for the summer of 2008. While there are other possible explanations, and there is no one way that a sexual assault victim will react to sexual violence, it makes great sense that if Mr. Foster did assault her in the elevator, NL would take that step to avoid him in future.
38NL’s evidence was also corroborated in part by Mr. Foster’s acknowledgement that he was indeed at a conference in Southern Ontario at a time that lines up with NL’s testimony. This is a most striking coincidence.
39NL was cross-examined on her opportunity to fabricate the Niagara email and manufacture that striking coincidence. NL agreed that she was aware that police officers tend to go to southern Ontario for conferences. Mr. Foster also testified that his attendance at that conference was much discussed within the GSPS, so NL might have heard about it around the office. Specifically, he testified that people at the GSPS would be aware of the conference. It was a big moment, because it was the first year that the GSPS operated a full robbery unit, and the conference was arranged months in advance. He also said that it was commonplace for GSPS officers to go out of town on conference for continuing education, and that common destinations included Ottawa, Aylmer, and Toronto. Peel would be less common, he indicated. Conferences would also happen often in the fall.
40Looking at this factor in isolation, it would be possible for NL to fabricate the email story, and either guess accurately about the timing of a conference involving Mr. Foster, or to learn at some point of that particular conference (either while at GSPS that summer, or anytime between 2007 and 2022). But examining this factor in the context of the evidence as a whole, I find both of those explanations to be unlikely. While police officers may attend conferences with regularity, the odds remain against NL pinpointing his attendance through chance alone. As to whether she might have heard about the conference through office chatter, that pathway depends on her either (i) hatching a plot to fabricate this allegation, and then sitting on that information for over 15 years, (ii) retaining a memory of the conference attendance for 15 years before incorporating into a fabrication, or (iii) some combination of the two. These scenarios seem highly unlikely. As does a scenario where NL learns of the conference attendance after her departure from the GSPS. That information, about a conference years ago, would be unlikely to come to NL’s attention. For these reasons, it strengthens NL’s credibility that exactly when she said Mr. Foster told her he was going to be at a conference in Southern Ontario, he was.
41NL’s demeanour also lent strength to her credibility. While she demonstrated great patience, it was clear that testifying in this trial was highly emotional for her. What I found particularly compelling was the change in her demeanour as questions approached or touched on the core of the assault allegations. This appeared to take a greater emotional toll on her than other parts of her testimony. While I must exercise extreme caution about the weight I give these observations, they are nonetheless among the factors I found compelling.
Foundations of NL’s cross-examination
42As foundation for the cross-examination, it was established that NL had made various prior statements about the alleged assault.
43She was interviewed by SIU investigators on November 3, 2022. During cross-examination, a transcript of this interview was available to NL and portions were put to her. NL had also sent SIU investigators emails in follow-up to her interview, most notably an email dated November 4, 2022, clarifying an item from the previous day’s interview. NL testified she believed the interview to be accurate, but stressed there were things that may have slipped her mind in the moment. She tried to be detailed but acknowledged the 15-year passage of time and explained she had tried to block out her memory of the event. She explained that her follow-up email of November 4, 2022, was sent during a calm moment, after she had discussed the matter with an elder. She rejected the suggestion that sending it was an easy thing to do. It was still hard for her.
44NL also participated in a telephone call with an SIU investigator on December 29, 2022, which addressed, not necessarily exclusively, the date that NL saw the accused at a grocery store. Additionally, NL met with the Crown prosecutor on two occasions, once in May 2024 and subsequently on July 15, 2024. NL acknowledged that she knew how to contact the SIU investigators if she ever needed to bring information to their attention.
45Against that foundation, the issues explored on cross-examination can be sorted into two broad categories: (1) that NL had testified to certain details that she had not included in any of her previous disclosures to the SIU or the Crown; and (2) that NL’s testimony was different in certain respects then what she had told the SIU or the Crown.
Newly disclosed details
46I will deal with this category in aggregate. The following topics were advanced by the defence as newly disclosed by NL at trial:
In chief, NL testified that during one of her first conversations with the accused, she was wearing a jersey with her school team logo on it. It precipitated a conversation about how Mr. Foster’s son attended the same school. NL clarified in cross-examination that it was a shirt. She never told the SIU or the Crown about this conversation. She explained she did not know she was supposed to call the Crown for every detail she remembered.
In chief, NL testified she would speak to Mr. Foster about soccer. She did not tell the SIU or the Crown about this.
In chief, NL testified that in the lunchroom where she would often chat with Mr. Foster she also remembers chatting with another officer by the name of “Duffy”. She did not mention Duffy to the SIU or the Crown.
In chief, NL testified that before the assault, she saw Mr. Foster while she was moving through the floors on her goodbye circuit. She did not provide this detail to the SIU. She explained she remembered this during the trial.
Under cross-examination, NL was able to partially describe the individual who came into and then left the elevator before the accused entered. She recalled he was a male, and a bit older. She did not provide this information to the SIU. She told the SIU that she could not recall who they were.
47I do not find that any of these “newly disclosed” details detract from NL’s credibility. None of these details goes to the core of the alleged assault in the elevator, and I accept that none would strike NL as so central that her failure to mention them during a police interview is at all suspicious. There is nothing unusual in details emerging on subsequent retellings of a witness’s recollection, as a witness is asked to think on matters again, even at trial.
Internal consistency: differences or contradictions
48In addition to newly disclosed information, NL was cross-examined on differences or contradictions in her evidence. Some of these issues also involved defence evidence to the contrary, but where an alleged inconsistency forms part of the analysis, I have chosen to address the issues here.
Time of day of the alleged assault
49Recall that in her testimony in chief, NL said that the event would have happened at the end of her workday, around 4:30 pm. Under cross-examination, NL explained she trusted the work schedule established by the SIU, filed as an exhibit by the Crown, which indicated that her working hours were 8:00 am. until 3:00 pm. When confronted with her earlier testimony, she explained that she had to wait for her mother to pick her up from work, and her mother was not available at 3:00 pm. NL also told the court that she did not realize her shift ended at 3:00 pm. She disagreed with the suggestion that she would not have waited 90 minutes after finishing work.
50I find that over the past 15 years NL has simply forgotten what time her shifts ended during her summer job and seized on “around 4:30 pm” as an estimate of when events occurred. In fact, the very first time NL was asked about her work hours, she said “I can’t remember the exact hours that I worked—I think I worked from 8 to 4 or 430.” This evidence clearly impacts NL’s reliability on the question of when her work actually ended, but I do not find this evidence impacts her reliability more broadly, or her credibility. I reject the suggestion that she changed her evidence to match her work schedule. Uncertainty regarding the end of the workday for a summer job 17 years ago is to be expected.
51Though Mr. Foster’s own evidence, relying on his police notes, does place him in the GSPS headquarters in and around 4:30 pm on the day in question, his evidence challenged NL’s in a different regard. He testified most departments would have closed as of 4:00 pm, which it was suggested posed a problem for NL’s evidence that she made goodbye rounds through various floors.
52I did not find this evidence to detract from NL’s credibility, or the plausibility of her account. NL has never pinpointed 4:30 pm as an exact time at which the elevator assault occurred. In chief, she said “around 4:30 pm”. It is further clear that the critical aspect of the timing, for her, was that it happened at the end of the day, before she was picked up by her mother, and that “around 4:30 pm” was itself an estimate. It is completely viable, even accepting Mr. Foster’s evidence on this point—which included that the elevators would be busy around 4:00 pm—that at the end of her shift she made her goodbye rounds while other units were still open or in the process of closing, before taking the elevator down to the ground floor.
Frequency of contact with Mr. Foster
53Mr. Foster testified that in the summer of 2007, he would not have had contact with NL. In chief, NL said she would see the accused “almost every day”. Understood in a literal sense, this would seem impossible. Mr. Foster’s August 2007 summer work schedule was tendered as evidence on consent, the parties agreeing with respect to its accuracy. This evidence was supplemented by Mr. Foster’s evidence, relying on his police memo book, of his work schedule earlier in the summer.
54For June 2007, out of NL’s total seven workdays, Mr. Foster only overlapped with her for four of them. For July 2007, out of NL’s 21 total workdays, Mr. Foster only overlapped with her for nine of them. For August 2007, out of NL’s total 17 workdays, Mr. Foster only overlapped with her on four of them: August 21, 22, 23, and 24.
55Under cross-examination, NL stated she misspoke when she said she saw Mr. Foster “almost every day”. She clarified that she had meant every day that he was there. She testified that she trusted the schedules which were provided by the SIU. She explained that she did not see him every day, but rather every time he was in the office he would speak to her, or every day that she saw him he would come and speak to her. It was put to her that in her interview transcript she described having “constant contact” with the accused and described seeing him “almost every day” and “at least once every day”. NL agreed that she had said those things but explained that 15 years ago she may have felt that she saw him every day. On days she was there he would contact her a lot. In her mind it felt that way. He was being charming to her, talking to her a lot. It felt like he was a pivotal person. She explained that she knows she did not see him every day—they had different schedules—but when they were both there, he would speak with her.
56When asked if anyone had given her a ‘heads-up’ that there would be an issue about her “every day” claim, NL denied that (and no evidence was later tendered to support that suggestion). She explained that she figured it out on her own, and that she did not think those things were important when she was interviewed. She thought back, and concluded she did not in fact see him every day.
57I accept NL’s explanation for the perceived inconsistency in her testimony. I accept that a person might describe contact with a former colleague as being almost daily when it was no so in a literal sense, but was consistent, regular, and meaningful. How often does a person say “I see them all the time” without intending its literal meaning? I am also mindful that NL’s interview took place 15 years after she held that summer job. The frequency of contact with the accused would have been secondary in importance to the sexual assault she was disclosing to the SIU. I accept she would not have been as careful in her verbiage concerning the level of contact, and that on consideration and reflection, her response changed. I further accept that even the reduced number of ‘overlap days’ they shared, even granting that their schedules would not entirely line up and Mr. Foster’s duties would take him away from headquarters, would be sufficient for the meaningful rapport she described to develop. I find that these discrepancies do not detract from her credibility.
Ear-buds versus earphones / the lunchroom
58In chief, NL testified that on the occasion she shared her sexually explicit music with the accused, she gave him her earphones to listen with. During cross, she agreed that in her interview with the SIU, she used the term ear-buds. She explained her understanding of the difference: that earphones have a connecting brace above the head. She also confirmed she meant earphones.
59NL also testified that she had conversations with Mr. Foster in the lunchroom on the second floor of the GSPS headquarters. She stipulated that this was not the lunchroom for the whole station but was a space that led out to a patio, and which had a water cooler and a fridge. She also described it as a “break room”. It was put to her that in her interview, she had said that Mr. Foster would go to the “regular lunchroom that everybody would go to.” It was put to her that she referred to it as a lunchroom multiple times. She agreed that Mr. Foster would attend this room, but repeatedly denied that he would eat his lunch there.
60These are very minute details. To the extent there are variations in NL’s descriptions of the earphones or the lunchroom, they are on peripheral details, and they cause me no concern, especially given the 15-year gap between the event and the interview, and the 17-year gap between the events and the trial.
61Mr. Foster testified that there were multiple lunchrooms at the GSPS headquarters. Of the six floors and the basement, only a few levels did not have their own dedicated lunchroom. He would use the lunchroom on the fourth floor, which housed his CID unit, as well as ‘intelligence’, the drug unit, and cybercrime. The CID lunchroom, as I will refer to it, would not have been accessible to all GSPS staff. It was in a secure area. Staff who worked in the basement, such as those with NL’s responsibilities, would typically use the lunchroom on the second floor. Mr. Foster said he would not use or go to that lunchroom.
62I accept Mr. Foster’s evidence that he would typically use the lunchroom on his floor as likely, given the layout of the station. The question as to whether he would ever attend a lunchroom used by NL is, in my view, a different matter, and bound up with the general questions of his and NL’s credibility.
63I did find NL to present as somewhat flustered and combative at this juncture in her testimony around the ear-buds and lunchroom. Immediately following this exchange, she asked for a break. I attribute this to the stress of the experience of testifying rather than evasiveness or hostility towards the defence. This presentation was isolated, and I did not find her defensiveness here to pervade her testimony.
Whether the elevator was stopped
64In cross-examination it was put to NL that she had previously told people, including a police officer, that when she was in the elevator with the accused, he stopped the elevator. These disclosures pre-dated her SIU interview.
65I accept that the elevator could not be stopped. Mr. Foster’s evidence was to that effect, and it was corroborated by a photograph of the elevator panel. On close examination of NL’s past and trial statements on this issue, she appears to agree.
66Her exact words in her statement were put to her. Omitting the interjections by the interviewer, she said the following:
No. It was closed. My recollection’s a little fuzzy on that. In my, in my memory, I feel like he stopped the elevator, but I don’t think there is a way to stop it. But I like, I felt like, I don’t know if it’s just cause I felt like time was suspended, but I felt like it was a longer time than it actually was.
67Under cross-examination she confirmed that in her statement, she was not sure. She felt time was suspended. She was not sure whether the accused in fact stopped the elevator or not. She acknowledged that she does not know how it would have been able to occur.
68To be clear, I cannot and do not rely on her prior consistent statement to support her testimony on this point. Her explanation does not increase in its credibility by virtue of having been repeated. But this does demonstrate that her explanation for her prior statement to an officer that the elevator had stopped is not a new explanation given at trial. And it is an explanation I accept. It appears very sensible to me that, in the shock of the moment, it seemed to NL that the elevator had stopped, and that is why she told people that. But, on considered reflection, she realized that it could not have.
Order of events during the alleged assault
69NL was challenged extensively about discrepancies in the order of events during the alleged sexual assault. There were three accounts that were put to NL: her testimony in chief, and two excerpts from her statement to the SIU. It was suggested to her that her evidence in chief had the components of the assault happen in a specific chronological order as follows: (1) Mr. Foster’s hand on her hip and push against side of elevator, (2) forcible kiss, (3) slide hand down her pants, cupping vagina, and (4) other hand pushing up shirt.
70It was suggested she twice provided a different ordering to the SIU. First, she said he pushed her against a wall and put his hand down her pants and lifted her shirt and forcibly kissed her. In a second instance, when the interviewer was recapping events, she said he pushed her with his hand and then put his other hand down her pants and then lifted her shirt and forcibly kissed her while with pushing his body against hers.
71I reject the suggestion that these perceived re-orderings negatively impact NL’s credibility or reliability. I am not persuaded that each version was ever held out a sequential chronology of discrete actions. Rather, NL was describing events conjunctively. I accept her testimony that these actions happened all at once. I also accept her testimony that it is difficult to remember because it happened all at once. Indeed, that was the impression I had from her evidence in chief even before her clarification under cross-examination.
72Aside from the order of actions, there were some minor deviations pointed out under cross-examination. First, NL testified that following the assault, Mr. Foster told her he would see her “next summer.” She stuck to this under cross-examination, even correcting defence counsel. In her statement to the SIU however, she had said he told her he would see her “next year.” This is a difference, but a minor one. In the context of a potential return as a summer student, the two terms would have functionally equivalent meanings—and it does not detract from NL’s credibility that she has not been consistent about which term was used.
73The second difference pertains the assault itself. NL agreed that in Chief she said he pushed her and put that same hand down her pants. In her SIU interview she said that he pushed her and put his other hand down her pants. I accept her evidence, given under cross-examination, that it is very hard to remember what hand he used to put down her pants. I would not expect her to remember this detail.
74There were also some details about the assault that were not given in the SIU interview. For example, she did not mention that Mr. Foster grabbed her breast, had his hand under her bra, and adjusted himself after. She also used the word ‘vagina’ for the first time at trial. While NL may have elaborated at trial, these details were not inconsistent with what she had told the SIU about the assault, which included Mr. Foster “lifting up her shirt”, and sticking a hand down her pants and “cupping her”. I would be troubled by these omissions to the SIU if NL had been asked directly about whether Mr. Foster had grabbed her breasts, touched her vagina, or adjusted his clothes afterward, and had denied it, but that is not the evidence.
Issues regarding the email
75In chief, NL testified that Mr. Foster used a personal email to contact her in the Fall of 2007 because it did not have a ‘GSPS’ attached to it, which I understood to mean it did not reference a GSPS email domain. Under cross-examination, she agreed she had previously told the SIU that it might have been his work email. One of the ASFs confirms that the GSPS could not locate an email sent from Mr. Foster’s GSPS email address to NL.
76The defence also raises concerns about the content of the email. In an earlier statement, NL said that Mr. Foster referenced traveling to Toronto. At another portion of her interview, she referenced him being in Niagara Falls for a work conference. When confronted with these discrepancies, NL testified that she misspoke in her interview. She simply knew that he was going “down south”, and that he was reaching out to her concerning meeting, specifically for sex.
77I do not find these discrepancies to detract from the complainant’s credibility or reliability. I accept her explanation. I am cognizant of the passage of time between the alleged sending of the email and NL’s coming forward, and of the passage of time between her SIU interview and trial. On her evidence, NL would not have laid eyes on the email since the first time she received it, 17 years ago. She was consistent about the identity of the sender and the core nature of the email invitation: to arrange a meeting including the possibility of sex. Inconsistencies in her statements as to peripheral details like the email address used to send the message can be explained by faults in the witness’s memory over a protracted period. In relation to Sudbury, both the Greater Toronto Area and Niagara would be “down south.” NL’s own location in Niagara, together with her perception that Mr. Foster was proposing to meet up with her, explains how she might misspeak about where Mr. Foster was suggesting he himself would be.
78Nor do I find the distance between Peel and Niagara—approximately 115 km—to render the notion he could meet up with her improbable. I see nothing implausible about Mr. Foster traveling that distance, even round trip. It is not a prohibitively inconvenient distance, especially considering that normally Mr. Foster would be in Sudbury, approximately five hours’ drive from St. Catharines.
79NL was also cross-examined on the fact that she did not tell the SIU about certain details in the email, including Mr. Foster’s alleged lewd comment. She did articulate that she thought she had mentioned this detail to someone on an earlier occasion, and in fact agreed, when it was put to her, that she fist disclosed it to the Crown during a meeting on July 15, 2024. I do not place much weight on her failure to disclose these details until close to or at trial. As discussed earlier, it is unrealistic to expect that new details will not arise as witnesses are asked to recall events. It is not every new disclosure that ought to raise suspicion.
Purported areas of contention with other evidence or common sense
80I must not consider NL’s evidence in isolation. The defence argues that NL’s evidence is inconsistent in certain respects with the balance of the evidence, being the testimony of Mr. Foster and the ASFs, or is simply unbelievable.
81I will stay, to begin, with issues surround the fall 2007 email.
Issues with respect to the email
82What is the impact of the SIU not having been able to recover the alleged email? In my view, it would be highly speculative for me to assign that fact any weight. The ASF on this point indicates that a Ministry of Finance analyst examining NL’s computer from 2007 could locate only 63 Hotmail email fragments, none of which related to Mr. Foster. I have no details as to the nature of the search. Are there technical limitations to such a search? Are there other reasons, besides the non-existence of an email, that would cause it not to be discoverable to the techniques used? What is an email fragment? NL was not asked how frequently she used that email address, so I have no basis to determine whether 63 email fragments is a large or small portion of her total emails using that address. The defence bears no onus in the trial and is under no obligation to prove the email could not have been sent, but I have no evidentiary basis to assist me in evaluating the available inferences from the lack of recovery or the strength of those inferences.
83What of the suggestion that the email could not have been sent because Mr. Foster could not have ascertained NL’s email address? Mr. Foster testified that he would have no idea how to do that. NL acknowledged that she never gave Mr. Foster her email address and that she does not know how he got it. She did testify that the email address would have been on her resume or in her file.
84It is an agreed fact that the GSPS could not locate any electronic communication sent to or from [redacted personal email address 1] in 2007. NL was also shown a human resources form she filled out on June 16, 2008. The import of this form is that there is no spot for an email address to be listed, and the form appears to have been a standard form used in 2006 and 2007 as well. This, the defence submits, dispels the theory that Mr. Foster could have obtained NL’s email address by checking her human resources file. I am not so sure. The fact that her email address was not included on one human resources form during her 2008 employment or was not used by the GSPS to communicate with her in 2007 does not satisfy me that NL would not otherwise have provided her email address to the GSPS in some direct or indirect fashion at another point throughout her multi-year course of employment.
85Moreover, I found Mr. Foster’s evidence on this point to detract from his own credibility. When asked in direct examination if he would have the ability to determine what NL’s email was, he confidently answered “absolutely not”. I found this to be strange, particularly for a detective; that he could think of no manner by which to obtain her email. Rather than emphasize that he simply did not know her and did not attempt such a search, he suggested he lacked the ability to discover a fellow employee’s personal email address.
86I find that Mr. Foster, as a veteran police officer of 23 years at the time, and occupying a leadership position, was sophisticated and resourceful enough to have possibly discovered her email by some means, whether it was stored by GSPS or not. He acknowledged his familiarity at the time with digital evidence, though he claimed to have limited computer skills. I am certainly in no position to make any finding with respect to how Mr. Foster might have done so, and it would be an error for me to hold the Crown to satisfy me on this issue beyond a reasonable doubt. That standard of proof applies only to my determinations on the ultimate elements of the allege offence. I am simply unpersuaded of the defence submission that it would have been impossible for Mr. Foster to discover NL’s personal email address. I am unpersuaded of the corollary argument that NL must therefore be fabricating the entire email story, and by extension, the allegations themselves. And I find Mr. Foster’s evidence on this issue to colour his credibility.
87Another issue with respect to the email is Mr. Foster’s evidence that it is not within his character to make a lewd and racist comment along the lines of “have you ever been fucked by a black man?” Mr. Foster testified that based on his lived experience, he would not have made such a comment. I accept that Mr. Foster has experienced significant stereotyping, bigotry, and racism throughout his life and career. I can take judicial notice of anti-black racism in Canada. I also accept that the alleged comment engages harmful stereotypes about black men. But do I accept the defence submission that based on his lived experience, it “makes no sense” that he would make such a comment? I am not so persuaded of the strength of the causal relationship advanced: that because of the racism he experienced, Mr. Foster could not and would not make that comment in 2007.
88One further issue with respect to the email: NL confirmed that within a couple of weeks of receiving Mr. Foster’s email, she changed her email address and began using another one. An ASF on this point indicates that in each of 2009 and 2010, there was a single email sent from the GSPS to [redacted personal email address 1], but neither email was from Mr. Foster. When this was put to NL in cross-examination, she appeared genuinely surprised by that fact, and indicated that she thought she got rid of it, but must have had to keep it for work. She did not appear to me to be confident in this assertion, but rather was struggling to explain what she genuinely did not understand.
89This did not cause me to doubt her credibility. As highlighted by the Crown in his submissions, the agreed evidence about the 2009 and 2010 emails does not demonstrate that NL used that email in any active sense. While we know there was some manner of traffic from the GSPS to that email, we do not know the nature, and do not know whether these emails were received. For example, I cannot, on this evidence, discount the possibility that in 2009 and 2010 the GSPS sent a widely distributed email to all its former summer students about some topic; emails that may have gone unanswered by NL’s now abandoned or defunct email address. I am not saying that is the case. I am simply pointing out that I cannot draw an inference from this information that NL must be, or even is likely lying about abandoning her old email address. There is no demonstrated inconsistency or even likely inconsistency between NL’s testimony and the ASF as it concerns the email.
Mr. Foster’s status in the community
90Mr. Foster’s evidence was that during his career, he had several specialized roles, including with respect to media relations and community response. He described himself as the voice and face of the organization. At the time of the alleged sexual assault, Mr. Foster was in the CID branch, where he was involved in investigating major crimes. There were instances when he would appear on television or radio in this role as well. Mr. Foster answered confidently that he would be recognizable to members of the public. He testified that if you worked at the GSPS for four summers, as NL did, you would know who he is.
91This evidence is relevant insofar as it (i) provides an alternative explanation for how NL would come to know of Mr. Foster, if, as he testified, they had no meaningful interactions. It is also relevant insofar as (ii) Mr. Foster’s evidence contradicts NL’s own on this point.
92I accept the first argument. The rapport between them that NL described is not the only logical explanation for her knowledge of him. Her knowledge of him could be explained by their status as colleagues and his prominent role in the organization. I cannot and do not reason that (a) she could only know him if she’s being truthful about their rapport; (b) she does know him; ergo (c) she must be telling the truth.
93But I reject the second argument, that Mr. Foster’s evidence about his prominence in the community should cause the court to question NL’s credibility. NL testified that she was not aware of the accused being well-known outside of work. She had never seen him on television, heard him on the radio, or read about him in the newspaper. She had not heard about the accused in her high school environment. I have no reason to doubt that Mr. Foster was a prominent member of the GSPS and media presence in Sudbury, or that his son was proud of him. But this evidence does not cause me to reject or doubt the complainant’s own evidence as to her level or awareness of Mr. Foster outside of work. I am skeptical of the claim that as a prominent police officer he was so notable within the community that any given 17-year-old high school student could not but know of him. In fact, Mr. Foster’s high level of confidence that he was universally known is one among several examples in his testimony where I found him to be unusually confident about something for which I would expect some acknowledged uncertainty.
NL’s assumption she would return to GSPS for further summer employment
94In cross-examination, it was suggested to NL that on her last day of work in 2007 she would have no way of knowing whether she would be returning for summer employment in 2008. Mr. Foster was asked about whether he would know, on the last day of summer, whether a summer student would be returning the following year. He said he would not. That would be a human resources decision and students who wished to return would have to reapply the following year. The argument would go, that if neither NL nor Mr. Foster knew she was coming back, then it would not make sense for the accused to say, “see you next summer” or “next year”.
95NL explained, however, that a return in 2008 was an unspoken thing. There was a person responsible for the summer student programme, and it was “kind of a given” that one would come back.
96I find nothing unusual about a circumstance where no official confirmation of return employment exists, while an informal expectation does, especially in respect of a student who has worked two summers and remains age-eligible in future. I did not find this point to detract from NL’s credibility, nor do I find it unlikely there would be an understanding, possibly held by the accused as well, that NL would return as a student in 2008.
The public setting of the elevator
97Mr. Foster testified that on a Friday afternoon in summer, towards the end of the workday the elevator traffic would be busy. NL agreed that the elevator where the alleged assault took place was one that both police officers and civilian employees would use. It was on a Friday, toward the end of summer, at the end of the workday. NL agreed that occupants of the elevator would have no idea who might be standing outside when the elevator doors open. Mr. Foster also testified that there would have been cameras at the elevator entrances for every floor, and this is confirmed by an ASF.
98From this evidence, can I find that the public nature of the location makes the assault complained of too risky an endeavour to be plausible? I draw no such inference. I grant this was a public setting in certain senses, but in others, it was quite private. NL’s account is that she and Mr. Foster were the only two people in the closed-door elevator when the conduct occurred. Mr. Foster agreed there were no windows or cameras in the elevators in 2007. The alleged assault was momentary. There is nothing in my view inherently implausible about an assault of this nature occurring in the fashion described, in the setting described. In fact, the inside of the elevator could be described as an island of privacy in a sea of surveillance.
The internal instant messaging system
99NL maintained under cross-examination that she had contact with Mr. Foster using the GSPS’s internal instant messaging system. Mr. Foster testified that if you wished to communicate internally at the GSPS, there was an intranet. You could communicate back and forth in a chat-like system using email, though he denied communicating with NL in this fashion.
100NL was confronted with the agreed fact that the SIU was unable to recover any evidence of such contact. She did not change her evidence. She could not offer an explanation. While it is agreed that no evidence of contact using this system was recovered, as with the email investigation discussed above, I have no information, such as the nature of limitations of the search, that would assist me in assigning this fact’s import.
Passcard Access / Return of Passcards
101Mr. Foster testified at length about the layout of the GSPS headquarters around 2007. He provided the court with detailed diagrams of each level. He also testified as to security measures in place at the time. To access the elevators, you would need a passcard. Passcards would be tailored to the carrier’s role in the organization. An ASF confirmed that summer students would be issued passcards that provided students with access to limited areas within GSPS Headquarters.
102Summer students, such as NL, would not have access to the CID floor on which Mr. Foster worked. To gain access, she would have to have someone let her in. Mr. Foster did not recall ever seeing her on that floor. Under cross-examination, he agreed he was not involved in determining where students could and could not go, and that there were areas they could access, including the second floor, the outer entrances, the administrative floor, human resources, and the mail room. He agreed that there would be restricted areas as well, like the drug unit, intelligence, or cyber crime. When it was put to him that a student might be allowed into one of those areas, by someone who works in those areas, he responded that he would find that highly suspect. He testified there were no CID students, and if a student came onto that floor, an administrative assistant or someone in CID would have to coordinate it.
103If Mr. Foster’s evidence on this point is accepted on its face, it does not cause me any difficulty with respect to NL’s testimony. NL did not claim to have liberal access to all sectors of GSPS headquarters. She did not claim to be unaccompanied on those floors at any time. The only part of her testimony that touched on her ability to access an area that Mr. Foster says would be secured against her is the CID offices in which he worked when she was making her goodbye rounds. He acknowledged that a student, such as NL, would be able to gain entry with assistance. He also acknowledged that summer student’s responsibilities included making supply deliveries. Given those concessions, I find the existence of a secure passcard system does not make NL’s evidence unlikely or logically suspect.
104Mr. Foster also gave evidence, and the ASF confirmed, that students would need to return their passcard on the last day of their employment. According to Mr. Foster, once one’s passcard was returned, one would not be able to access the elevators, even on the first floor. The argument would go that NL’s version of events is implausible because she must have given her card back by then and would not have had elevator access.
105I do not find it concerning that NL has no recollection of surrendering her employee passcard on the last day of work. I disagree with the defence submission that her failure to recall her ‘card return’ renders her version of events on her last day of work implausible. It is possible she returned it at a later time and does not recall. It is also possible she never returned it. While the ASF stipulates that students would have to return passcards, I do not have any evidence to assist me with whether the GSPS policy was being strictly enforced, was enforced in this case, or, for example, whether passcards could simply be deactivated, so tracking them down was not a priority. Given the significant gap in time between the allegations and her testimony, NL’s inability to recall does not cause me concern.
The later encounter at the grocery store
106NL testified she believed this grocery store to be on the main strip or main road in Val Caron. In an email she previously sent to the SIU investigator, she mentioned Highway 17. When shown a map, NL had to agree that Highway 17 does not traverse Val Caron. She explained she was mistaken about what highway she was referring to. I do not place much weight on this inconsistency. Her explanation for the mistake is very plausible, and in the context of the evidence as a whole, my confidence in her credibility was not shaken.
Motive to fabricate
107The Crown submitted that I should consider Mr. Foster’s evidence that he did not know NL to conclude that NL has no motive to fabricate the allegation. As the Court of Appeal for Ontario held in R. v. Bartholomew, 2019 ONCA 377, at paras. 21-22:
… From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations. From a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth.
However, problems occur when the evidence is unclear – where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.
[Citations omitted.]
108While Mr. Foster’s denial of any rapport with NL would tend to show there was no animus NL harboured toward him that he was aware of, I do not think this is one of those rare cases where I can safely conclude the Crown has proven there is no motive to fabricate. I cannot discount the possibility that there is some motive, unknown to Mr. Foster, who bears no onus, and unknown to the court.
109That said, potential for an elusive motive to fabricate does not equate to actual fabrication and does not automatically translate to reasonable doubt. Even a complainant who has a proven motive to fabricate may be accepted as credible and truthful, and, in the context of the evidence as whole, their evidence may ground a conclusion that the offence is proven beyond a reasonable doubt.
Remaining issues pertaining to Mr. Foster’s evidence
Mr. Foster’s character
110Mr. Foster led evidence of his good character, consisting largely of his record of service as a police officer for 31 years, and his receipt of awards recognising his years of service. Good character evidence can be relevant to credibility and an accused’s propensity, or lack thereof, to commit the offence in question. The defence acknowledged in submissions that this type of evidence often has reduced weight in cases of sexual assault, especially with respect to offences committed in circumstances of privacy: see R. v. J.K., [1997] O.J. No. 1559 (Gen. Div.), at paras. 72, 75. But the defence asserted that these allegations took place in a public setting. Several cases have recognized error in discounting the impact of good character evidence in public settings: for example, on a busy airplane (R. v. Khan, 2017 ONSC 7109, at para. 82); in a classroom with an open door (R. v. Strong, [2001] O.J. No. 1362, at para. 10); in a shared hospital room with an open door (R. v. Lizzi, 1996 CanLII 21269 (Gen. Division.) at paras. 99-100).
111As I have noted, the location of the alleged assault in this case has public and private aspects. While the GSPS headquarters on a Friday afternoon is highly public, the elevator itself was private. To a degree, the privacy of the elevator itself does attenuate the value of the good character evidence.
112But the more significant issue with respect to the character evidence is not the location of the allegation, but the quality and nature of the evidence to begin with. This is not a case where I heard evidence of Mr. Foster’s general reputation for honesty and credibility in the community, or evidence with respect to his reputation for sexual behaviour or sexual morality. The good character evidence was focused rather on his long public service. This may translate into a reputation for having a good work ethic, and as being responsible in a general sense, but it offers limited insight into whether he was capable of or likely to commit this specific offence. I do not discount this evidence entirely, but it is of limited assistance.
Mr. Foster’s memory
113Mr. Foster was confident and certain about some things not having happened, in circumstances where I would expect him to have no clear memory.
114For example, he testified that in the summer of 2007, he had no contact with NL. I would expect Mr. Foster to be able to recall one way or another whether he had a rapport with NL of the type she described. But it strains credulity that he can be so certain he had no contact with her, even incidentally or innocuously. They worked in the same building. He faintly recalled her as someone who might have worked there. How can he be so certain they had no contact whatsoever? Surely a brief conversation about the weather, or a silent shared elevator ride would neither make it into Mr. Foster’s memo book, nor would it become ingrained in his memory such that he could recall 17 years later. It troubled me that he was not more open to the possibility that they had incidental contact.
115In fact, Mr. Foster agreed that there would be occasions when he would need to attend stores or properties, NL’s main work location, though he denied that he had any need to do so during the relevant timeframe. Even accepting his memo book might help him to be sure he did not attend there on the specific afternoon of the allegation, his acknowledgement that he would need to attend on occasion undermines the foundation of his claim he was certain they had no contact.
116A second, related example: it was put to Mr. Foster under cross examination that police officers might speak to students about careers in policing. He initially responded that the question was a tough one for him to answer. He does not know what each other officer would speak about, though he did indicate he was sure it would happen in casual conversation. As for himself, he testified that he did not engage in such conversations.
117I was troubled by the confidence with which Mr. Foster claimed that through his entire career he was sure he never spoke to any student about a career in policing. This would be a remarkable feat of memory given his lengthy career. It could perhaps be explained by a firm policy against speaking to such students. But if he was, as he testified, “the voice and face of the organization”, and from a proud family of policing, he strikes me as exactly the type of officer who would extend that courtesy to students. His evidence on this point seemed implausible.
118Most troublingly, however, was the confidence with which Mr. Foster testified that on the afternoon in question, he would not have been in the elevator. Recall that Mr. Foster did not learn of the investigation until late 2022, and that was the first time he was prompted to recall events that, on his version, would have been unremarkable. Referring to his police notebook, he testified that he would have been performing “office duties”, “a bit of a catch all”. He had just come back from holidays and was working on a hate crime investigation. Under cross-examination, he confirmed that he had no specific memory of what he did in the 1.5 hours between 3:30 pm and 5:00 pm. But when asked earlier if he would have been in the elevator he said “absolutely not” and that his floor is self-sufficient.
119If, as Mr. Foster, testifies, there was nothing remarkable about that afternoon, I find it hard to believe that he remembers, with such certainty, that he was not in the elevator. We know that Mr. Foster was not someone who avoided the elevator generally—he agreed he used it that day to go to and from his office. I find it hard to believe that he has a specific memory that no business or distraction required him, on that unremarkable day 17 years ago, to go to or from another floor. Nor do I believe that such an occurrence—getting something forgotten in his vehicle for example, or whatever it might be—would generate a specific entry in his notebook. That Mr. Foster was so certain he did not use an elevator that afternoon causes me great concern that his evidence on this point is tailored so as to eliminate his opportunity to have committed the offence.
A pattern of downplaying opportunity
120I perceived, in these examples and others, a pattern in Mr. Foster’s evidence of downplaying his own opportunity to have committed the offence. While it is entirely legitimate for the defence to lead evidence challenging the opportunity to commit an offence, Mr. Foster’s efforts in that regard caused me concern that he was not genuine or even-handed in his responses to questions that touched on opportunity.
121His stated certainty he was not in the elevator is one example. His professed inability to discover a student’s personal email is another.
122But I also found Mr. Foster’s descriptions of GSPS workplace conditions or culture, or at least his willingness to comment on those topics, to shift depending on the issue raised. On the one hand, he was initially unwilling to comment on officers mentoring summer students, was adamant about strict security barriers between students and police officers and between different departments and was confident about his lack of interactions with NL. On the other hand, he was keen to discuss how people at GSPS would absolutely be aware of his November 2007 Peel conference months in advance. He spoke about it publicly, his supervisor did. He was willing to speculate that the robbery conference was such a big deal—like someone having a baby—that it would be talked about it in the hallways, and a student would be able to overhear it. Suddenly, when it suited Mr. Foster, the GSPS was not so siloed.
123Indeed, the example Mr. Foster gave of how NL might have learned of the conference was that an officer might be speaking to an administrative staff member in CID while the student is in the background. Mr. Foster’s willingness to make allowances for those type of casual interactions shifted depending on whether it would tend to harm his defence. It was not the self-serving nature of the evidence itself that gave me pause—true explanations of innocence will be self-serving—rather it was the inconsistency of Mr. Foster’s curating his evidence to minimize the opportunity for him to have committed the offence, and to maximize NL’s opportunity to fabricate the offence.
124This issue also manifested as a defensiveness on Mr. Foster’s part during his cross-examination. When he was being asked, in very plain terms, about his interactions with students, he was coy:
Q: In 2006, 2007, you worked with students, correct?
A: Define work
Q: You encountered them as part of your duties at headquarters at Sudbury Police, correct?
A: I’m sorry, what year?
Q: 2006 and 2007
A: I did not work with students in criminal investigations.
Q: So, well, I’m not talking you directly, but you must have encountered—
A: You asked me if I worked with students and my answer is, I did not work with students in 2006, 2007.
Q: Right. But you must have encountered students in 2006, 2007, in the building.
A: They would have been in the building.
Q: You must have encountered them.
A: Define encounter, sir.
Q: Did you speak with any?
A: probably in passing.
125My impression is that Mr. Foster was capable of clarifying the nature of his interactions with students much more straightforwardly. I would not place much weight on this exchange in isolation—perhaps this semantic jockeying is typical for Mr. Foster—but his approach to these questions supports my concern that he was focused more on putting distance between himself and NL, rather than providing his most accurate and complete observations as a witness.
Identification
126I must consider the possibility that even if the evidence convinces me beyond a reasonable doubt that a sexual assault occurred as NL described, she might be mistaken about her attacker’s identity. In other words, separate from her credibility, there is a question of reliability specific to the issue of identification. Though I have separated this issue for discussion purposes, I continue to consider this issue in the context of the evidence as a whole.
127NL was asked to perform an in-dock identification of the individual she was describing, and indicated the accused, who was seated at counsel table. It would be unsafe to convict based on an in-dock identification alone.
128But NL did not describe only fleeting interaction with Mr. Foster. She described a rapport over the course of her summer employment. The interactions she described included a conversation about her high school, which included a discussion of Mr. Foster’s son attending the same high school. This fact is partly corroborated by Mr. Foster’s own evidence in that he agreed his son attended NL’s high school. Both used the same first name to identify Mr. Foster’s son. I appreciate that, as Mr. Foster testified, NL might have learned of his son through different means, such that she could then fabricate the conversation she described. That issue is bound up with the question of her credibility generally. But with respect to whether her she is honestly mistaken about who she is describing, this evidence is important.
129The rapport also included digital interaction with Mr. Foster through the intraoffice instant messaging platform. It included an email from him following the alleged assault. This evidence tends to confirm that NL is quite aware of who she is talking about when she is speaking about Wayne Foster, and that the core issue is her overall credibility. I reject the possibility that NL is confused about whether Mr. Foster is the man she described assaulted her in the elevator.
130I am mindful that when NL was asked by the SIU to describe her attacker, she made no description of race or skin tone, and did not indicate anything about his facial features, nor whether he wore glasses, which he did. I am also mindful that she testified that she believed “he had a chinstrap”, “a little bit of facial hair.” She did not tell this to the SIU either. At trial, she explained that she had disclosed the things that really stuck out in her mind.
131Had she been tasked with describing a stranger to her, who the SIU might have to work to differentiate from other suspects, it might be more concerning that she provided an incomplete account. But in the context of a complainant describing someone she professes to know and work with, with whom she has a rapport, and whom the SIU could easily distinguish and locate, I do not find it strange that she would omit certain details. Those details would seem less important. Her omissions do not detract from her credibility or reliability on this issue.
132I must consider that NL’s evidence regarding facial features was contradicted by Mr. Foster’s own. He testified that he had a goatee at the relevant time, rather than a chinstrap beard. I accept Mr. Foster’s evidence in this regard. It is corroborated by reliable physical evidence. But this discrepancy, considered in the context of the evidence as a whole, does not cause me to reasonably doubt that NL has correctly identified Mr. Foster as her assailant. 17 years have passed between the alleged assault and the trial. The particular type of facial hair on her attacker’s face is not a core feature of the events. Moreover, when she did describe a chinstrap—which I find she did in error—she did not present that detail as something she had the fullest confidence in. She said “I believe he had a chinstrap, a little bit of facial hair.”
IV. Conclusion
133My ultimate task, again, is to consider whether the Crown has proven beyond a reasonable doubt that Mr. Foster sexually assaulted NL. Based on my analysis of the evidence, I find the Crown has met its high onus.
134My view as to the strength of the complainant’s evidence was unshaken by the arguments advanced, considered individually and cumulatively. I do not believe the evidence of Mr. Foster. Nor do I find his evidence raises a reasonable doubt. My conclusions in this regard are grounded in the combined strength of NL’s evidence, which I accept, and the identified flaws in his own evidence.
135On the strength of the evidence I do accept, I am persuaded beyond a reasonable doubt that on NL’s last day of summer work in 2007, Mr. Foster approached her in the elevator, placed his body against hers and kissed her forcibly. I am persuaded, beyond a reasonable doubt, that he moved a hand upwards to her chest, and that he also moved a hand down towards her vagina. These events happened quickly. I cannot be certain, nor need I be certain, as to the exact order of these actions. Further, I am not able to determine, to the necessary standard, whether Mr. Foster touched NL’s breast or her vagina inside or outside of any particular layer of clothing. I am persuaded that NL honestly reported her best recollection of the assault, and that she was groped in both those sections of her body. But in the flurry of the assault, I think it possible she is mistaken about these more precise details. I am persuaded beyond a reasonable doubt, that NL did not consent to any of these sexual acts.
136Accordingly, Mr. Foster will be found guilty of sexual assault as charged.
Released: December 23, 2024
Signed: Justice G. Jenner