R. v. Elmajbri, 2025 ONCJ 367

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 of Canada. This subsection and subsection 486.6 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 (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way;

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2025.06.27
COURT FILE No.: Toronto # 23-48112998

BETWEEN:

HIS MAJESTY THE KING

— AND —

ISLAM ELMAJBRI

REASONS FOR JUDGMENT

Released on June 27, 2025

Mr. D. Parry............................................................................................. Counsel for the Crown
Messrs. R. Rotenberg and K. Taghavi.............................................. Counsel for Mr. Elmajbri

BAND J.:

I. Introduction and Procedural History

1Mr. Elmajbri was charged with two counts of sexual assault on MC, whose identity is protected by a publication ban in this case.

2The incidents took place on May 25, 2023, in the emergency department (ED) of the Toronto Western Hospital (TWH), where Mr. Elmajbri was working as a personal service worker (PSW). MC attended the ED because he was suffering from gastrointestinal problems which were associated with his chronic alcohol intake. In the one or two weeks preceding his attendance at the ED, MC had also been experiencing increased anxiety which, in turn, led to an increase in his consumption of alcohol. He was drinking approximately nine alcoholic drinks per day. While the parties disagree about the extent, it appears that MC was experiencing a crisis at the time. In addition to his alcohol dependency and feeling unwell, he had recently been the victim of an assault.

3MC was placed in a curtained area that the parties have referred to as Rm. 14, where he met with a nurse and a doctor. Later, Mr. Elmajbri entered Rm. 14 and the two interacted. MC alleges that Mr. Elmajbri sexually assaulted him in Rm. 14 and then, a short while later, in the washroom. Initially, MC thought that what happened in Rm. 14 had been accidental. However, after the washroom incident, he concluded that he had been sexually assaulted in both instances.

4Prior to trial, I allowed a defence application for access to certain third-party records relating to MC pursuant to s. 278 of the Criminal Code and the governing authorities. MC was represented during that procedure.

5At the outset of the trial, Mr. Elmajbri was facing allegations of a similar nature involving a different complainant. The Crown intended to bring a “similar fact application” regarding the allegations of both complainants. However, the other complainant was not available for trial and, ultimately, the Crown discontinued that prosecution. This led Mr. Rotenberg to abandon a severance application that he had filed on behalf of Mr. Elmajbri.

6Shortly before the trial, Mr. Rotenberg also filed materials in support of an application for a stay of proceedings pursuant to s. 11(b) of the Charter of Rights and Freedoms. Because he had not provided sufficient time for Mr. Parry to respond on behalf of the Crown, it was agreed that the trial would begin and that the issue of delay would be dealt with at the end, if necessary. After Mr. Parry closed the case for the Crown, Mr. Rotenberg indicated that the delay argument would no longer be advanced (at the time).

7At trial, Mr. Parry made a two-pronged application regarding the counts against Mr. Elmajbri. First, he asked that the two incidents be treated as a single transaction. As such, the evidence on one could be used in respect of the other. In the alternative, and for the same reason, Mr. Parry made a count-to-count similar fact application. It was agreed that my ruling(s) would wait until the end of trial.

8At the close of the Crown’s case, Mr. Rotenberg applied for a directed verdict on Count 1 (the Rm. 14 incident). I dismissed that application with oral reasons.

9I received oral submissions from the parties at the end of the case. Subsequently, I realized that I required more assistance from them. This included the need to receive submissions from Mr. Rotenberg regarding the Crown’s single transaction and similar fact arguments. The parties provided me with additional assistance on the date that had been originally set for judgment. This regrettably led to some delay.

10In the following reasons, I explain how I reached my decision in what was a difficult trial. In doing so, I acknowledge that MC and Mr. Elmajbri were required to share highly intimate details of their lives with the Court.

II. Factual Overview

11An overview of the evidence will put the issues in their proper context.

12MC recorded what was said in Rm. 14 on his cell phone. His stated reason was that he wanted to have a record of the doctor’s advice. This recording was transcribed and made available at trial. The recording is not perfect. Discussions between other parties and other noises interfere with it. One segment, that was of importance to the defence, was not transcribed at all. Naturally, the recording and transcript played important roles at trial.

13Similarly, there is much security footage capturing the comings and goings in the halls of the ED. This, too, was presented at trial.

14Obviously, there is no security footage of what happens inside the examination rooms or washrooms. Also, MC did not record what happened in the washroom as he had left his cell phone in Rm. 14.

15MC is a 46-year-old man who has lived in Toronto his whole life. He holds an honours degree, a master’s and a Ph.D. He has been a professor at a university for 22 years. He is also a TA.

16He alleged that in Rm. 14, Mr. Elmajbri ordered him to lie on the bed and to loosen his belt because it was too tight. Mr. Elmajbri helped him do so and also undid the top button of his pants. In that context, Mr. Elmajbri made a lateral movement across what MC described as his pubis and pubic hair area and made contact with the glans or tip of his penis with his fingers. He explained that his penis had been in the “ventral” position, namely, with the glans pointing towards his head. At the time, MC thought the contact had been incidental. A short while later, MC went to the washroom with Mr. Elmajbri because Mr. Elmajbri had told him that he needed to clean him. In the washroom, Mr. Elmajbri sexually assaulted MC by fondling his penis with his soapy hands under the guise of cleaning him. He did so in a circular motion using both hands, like when one is washing dishes. He sudsed his hands more than once from the soap dispenser in the process. MC heard Mr. Elmajbri’s breathing get heavier. MC began to become aroused and told him “I think that’s clean enough.” Mr. Elmajbri stopped what he was doing and told MC to turn around so that he could wipe between his buttocks. MC did so with a moist towel. After that, MC felt something quickly penetrate his anus. He believed it to be Mr. Elmajbri’s finger, seeing no other explanation. He leapt away. Then, Mr. Elmajbri tried to kiss him on the mouth. He was able to evade that attempt, and the kiss landed on the side of his mouth. Mr. Elmajbri then told him that what happened should stay between them. The two then left the washroom and MC returned to Rm. 14. Mr. Elmajbri also returned a short while later and the two exchanged pleasantries and goodbyes.

17MC testified that he did not consent to any of what Mr. Elmajbri did. He was able to clean himself and could have done so if he had wanted or needed to. He did as he was ordered to do because Mr. Elmajbri was a medical professional. He complained to the doctor later that night, and provided statements to police, first on body worn camera (BWC) on May 26 and then at the station under oath and on video on May 27.

18Mr. Elmajbri is from Libya, where he studied medicine but did not complete those studies due to the revolution and civil war that began in 2011. At that time, he became involved by offering first aid. One day, the ambulance he was riding in was struck by missiles. He alone survived. However, he was gravely injured. He was in a coma for over a month and hospitalized for several years, in different countries, including Canada. That is how he came to settle here, first as a refugee claimant. He lost one lung and one of his feet had to be amputated. He also lost most of his left hand. What remains is the thumb and the lower half of the palm. For the first two and a half years he spent in hospital, he was extremely disabled and had to depend on others to see to his toileting and basic hygiene.

19Mr. Elmajbri has also struggled with addiction. As a result of his injuries, he became dependant on painkillers. This affected his inter-personal relationships and cost him his marriage. He has also struggled with homelessness for a time here in Toronto.

20He is thankful to the many people who took care for him when he was in hospital, and the experience enhanced his desire to help others who might be similarly situated. He is also, by his own description, what we might call a “clean freak.” This is why he became a PSW.

21As for the allegations, Mr. Elmajbri denied having touched MC’s penis in Rm. 14, having inserted his finger into MC’s anus and trying to kiss him. He explained that in the course of his duties, he noticed MC slumped on a chair in Rm. 14 in the dark. He had a backpack and a large bag with him. He appeared unwell and disheveled. His shirt was almost completely unbuttoned. He suggested that MC would be more comfortable on the bed. He offered to get him a warm towel. Because MC smelled of urine and sweat, as though he had not showered in days, Mr. Elmajbri offered to clean him. This is a service that he and other PSWs regularly perform in the ED. Being situated in downtown Toronto, the ED at TWH sees many unhoused persons. Some of them, “regulars” as Mr. Elmajbri referred to them, come to be cleaned. He and his female colleague assist each other with patients of the opposite sex.

22He believed that MC was in the same predicament. As MC went over to the bed, Mr. Elmajbri noticed that his belly was exposed and that his belt was too tight. He told him so. MC’s response “Yeah. The belt’s too tight sometimes.” sounded like an agreement. With gloves on and using a moist towel from a package, Mr. Elmajbri essentially gave MC a wipe down from the neck area down to the waist. Access was easy because MC’s shirt was already unbuttoned. At one point on the recording, laughter can be heard. Mr. Elmajbri explained that this was MC’s reaction, perhaps to being touched in a ticklish spot.

23Mr. Elmajbri then told MC that if he wanted to go to the washroom, he would help him. MC agreed, and the two went to the washroom. Mr. Elmajbri went ahead to ensure that it was available. Once they were inside, he locked the door behind them out of concern for MC’s privacy. After declining to use the toilet, MC told Mr. Elmajbri that he was kind of lost, that he was struggling with alcohol and addiction and that he did not know what to do. Mr. Elmajbri shared his own personal history and the two had an intimate and emotional conversation for four-to-five minutes. Then, Mr. Elmajbri showed MC the package of wipes and told MC that he would help him by cleaning his private area and to lower his pants. He had gloves on and a package of wipes in his hand. With gloves on, he wiped MC’s genital area using circular motions across and down. He did so only with his right hand. No words were exchanged during the process. Then, he told MC to turn around and quickly wiped between his buttocks. Then, he told Mr. Elmajbri to pull his pants back up. He then tapped MC on the shoulder and told him that what had been said was between the two of them, reassured him that he was in the right place and wished him well. The two parted and MC returned to Rm. 14. A short while later, Mr. Elmajbri returned to Rm. 14 to say bye to MC It was the end of his shift. On the recording, the two can be heard exchanging pleasantries. Mr. Elmajbri reiterated that he had been addicted. He also mentioned that MC might be referred to a clinic. He then told him encouraging words, to which MC replied, “Wise words. Thank you.” Then he left.

24Mr. Elmajbri agreed that he had never asked MC if he wanted to be cleaned and that MC had not asked to be cleaned. Rather, he proceeded on the assumption that he wanted to go to the washroom and offered to help. Likewise, because of the odour, he believed that MC needed to be cleaned. He told him “I will help you, I will clean you” and MC took him up on it. He also explained that as a PSW, he is not held to the same strict standards regarding consent as a physician. His approach when he believes that a patient requires help is to tell them something like “I can help you, I can clean you” or “your belt is tight.” He is not a native English speaker, and this is how he broaches a subject. Based on his answers in cross-examination, to him, this is the same as asking “is your belt too tight?” Then, he proceeds to help unless the patient declines. Moreover, in this case, MC said “OK” and there was also a degree of physical communication or body language, as he put it, that night.

25Mr. Elmajbri denied that he knew about MC’s gastro-intestinal complaints when he talked about the belt. Likewise, he denied that he knew that he was struggling with alcohol addiction before the bathroom incident. At no time did Mr. Elmajbri become aware of MC’s personal health information. PSWs do not have access to medical charts and the boards around the ED do not contain such information. Likewise, he did not ask for or know MC’s name. He never asks patients their name. MC was a patient like countless others and he was shocked to learn of the allegations several months later.

III. Positions of the Parties and Issues to be Decided

26There is no question that if I find as a fact that Mr. Elmajbri inserted his finger into MC’s anus and tried to kiss him, he is guilty of a sexual assault. The more difficult questions surround the other actions Mr. Elmajbri took in relation to MC in Rm. 14 and in the washroom.

27Mr. Parry argues that I should reject Mr. Elmajbri’s evidence in its entirety because it is self-serving and lacking in credibility – particularly concerning Mr. Elmajbri’s approach to consent, which is inconsistent with his understanding that consent is fundamental in all aspects of healthcare. He argues that Mr. Elmajbri’s claims of concern for MC are belied by the fact that he did not walk him to and from the washroom. He also points to the circumstances surrounding the washroom incident. It does not make sense, in the context of health care, to have MC stand with his pants around his ankles in a public, albeit locked washroom in the ED to be cleaned. That, combined with the parts of MCs’ anatomy in issue, leads inexorably to the conclusion that the incidents took place in circumstances of a sexual nature.

28He further argues that I should accept MC’s evidence beyond a reasonable doubt. The inconsistencies in his evidence that were revealed at trial are peripheral and should not cause me to doubt the truth and accuracy of his core account. He also urged me to consider the security footage of MC walking to and from the washroom. He argues that MC seems different on the walk back to Rm. 14. According to him, MC looks stunned or dazed, which is consistent with being in shock.

29If I find that MC consented in words or actions, Mr. Parry argues that any such consent was vitiated by Mr. Elmajbri’s position over MC, by operation of ss. 265 and 273.1 of the Criminal Code.

30In the alternative, Mr. Parry argues that if I accept Mr. Elmajbri’s evidence, he is not necessarily entitled to an acquittal. On its face, he submits, Mr. Elmajbri’s evidence demonstrates that he did not obtain consent to touch MC in the ways that he did.

31The Crown’s case theory included the following themes:

• Mr. Elmajbri knew that MC was at the ED due to gastrointestinal issues because he had accessed his chart;
• Mr. Elmajbri knew that MC was an alcoholic, either because he had read his chart or because his breath would have smelled of alcohol;
• Mr. Elmajbri decided to exploit MC, who was in a vulnerable situation and whom, he thought, nobody would believe (on account of his alcoholism);
• Mr. Elmajbri tested the waters by loosening MC’s belt and placing his fingers beneath MC’s waist to make contact with his penis; then,
• emboldened, Mr. Elmajbri made MC go to the washroom where he could sexually assault him again.

32Mr. Rotenberg argues that I ought to accept Mr. Elmajbri’s testimony and find him not guilty on both counts. He administered professional and caring services to someone who was in need and who, based on his words and actions, consented to such. He argues that MC was not a credible or reliable witness and that I should reject his testimony that he did not consent to being cleaned by Mr. Elmajbri, either subjectively or by reason of Mr. Elmajbri’s position as a PSW. He also points to concerns about the fact that MC had been drinking before he went to the ED, before he gave his sworn statement to police and, indeed, before testifying at trial on both days.

33Furthermore, Mr. Elmajbri’s own testimony is not consistent with guilt. It is important to keep in mind the distinction between the concept of “informed consent” as it exists in the civil law, and consent that is required by the Criminal Code: see R. v. D.B., 2020 ONSC 4782 at para. 56. In this case, on Mr. Elmajbri’s account alone, MC had consented. Moreover, cleaning MC did not take place in circumstances of a sexual nature. As a result, Mr. Elmajbri is guilty of neither sexual nor simple assault.

34The main question in this trial is whether the Crown has proved beyond a reasonable doubt that Mr. Elmajbri’s actions constituted sexual assaults on MC. More particularly, whether the Crown has proved beyond a reasonable doubt that MC did not consent to being touched by Mr. Elmajbri in the ways that he was touched in Rm. 14 and in the washroom.

35Mr. Rotenberg’s theory is that MC engaged in revisionist history, wilfully or otherwise, and delivered a narrative in which he had been ordered to submit to Mr. Elmajbri’s desire to touch him sexually under the guise of cleaning him. This would explain MC’s inconsistent statements and the evolution of his account over time.

36Given the nature of the evidence in this case, the answers to those questions depend on the credibility and reliability of the testimony.

IV. Applicable Legal Principles

On the burden of proof

37The Crown bears the entire burden of proving Mr. Elmajbri’s guilt beyond a reasonable doubt. That burden never shifts to Mr. Elmajbri. In R. v. Lifchus, [1997] 3 SCR 320 at para. 36, the Supreme Court of Canada explained that reasonable doubt is not based on sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty.

38In most cases where an accused person testifies or presents evidence, it is important to follow the analytical framework that the Supreme Court of Canada provided in R. v. W.D. (1991), 63 CCC (3d) 397 to ensure that the burden of proof does not shift. It is broken down into three prongs:

(i) If I believe Mr. Elmajbri’s evidence and it is exculpatory, I must acquit him.
(ii) If I do not believe Mr. Elmajbri’s testimony but am left in reasonable doubt by it, I must acquit him.
(iii) Even if I am not left in doubt by Mr. Elmajbri’s evidence, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt.

39The W.D. framework is not a magical incantation to which trial judges must adhere to the letter. I also remind myself that a criminal trial is not a credibility contest as between the accused person and the complainant. What is more, credibility and reliability are not all or nothing propositions; a judge can accept some, all or none of what a witness says.

40In R. v. G.(M.) (1994), 93 C.C.C. (3d) 347 at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390, the Ontario Court of Appeal wrote that “[p]robably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not.” The Court went on to explain that

[i]nconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

41In R. v. R.E.M., 2008 SCC 51 at para. 49, the Supreme Court of Canada discussed trial judges’ reasons regarding credibility findings. At para. 49, the Court explained:

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. (My emphasis.)

This passage applies with equal force to credibility assessments of complainants in appropriate cases.

On the elements of sexual assault

42In R. v. Chase, [1987] 2 SCR 293 at para. 11, the Supreme Court of Canada explained that sexual assault is

an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer…. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant… The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. ( Internal citations omitted .)

43The absence of consent is established subjectively; that is, by reference to the state of mind of the complainant at the time of the incident(s): R. v. Ewanchuk, [1990] 1 SCR 330 at para. 26. A complainant’s statement that they did not consent “is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with [their] claim of non-consent” (at para. 30). Therefore, “[i]t is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against [their] assertion that [they], in [their] mind, did not want the sexual touching to take place” (at para. 29).

On both incidents constituting a single transaction

44In R. v. Eze, 2022 ONSC 277, also a case that Mr. Parry prosecuted, Madam Justice Presser had occasion to determine when more than one incident, separately charged, can amount to a single transaction such that the evidence regarding one is admissible regarding the other without resort to a similar fact application. Her Honour explained that while s. 581(1) of the Criminal Code requires that each count charge a single transaction, each count is count does not necessarily charge a discrete transaction. At para. 112, Her Honour cited the Court of Appeal in R. v. Selles, [1997] O.J. No. 2502 at para. 16, as follows:

While subsection 581(1) requires that a count relate to a “single transaction”, a “single transaction” is not synonymous with a single incident, occurrence or offence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered as one transaction and no objection can be taken to a conviction thereon on the basis of uncertainty….

45Her Honour then summarized by stating that “[i]ncidents that are sufficiently connected by time, place and circumstances, or that refer to a continuing course or a pattern of conduct may comprise a single transaction within the meaning of s. 581(1).”

On cross-count similar fact applications

46In R. v. M.W., 2023 ONSC 4913, Mr. Justice Stribopoulos summarized the law relating to the admissibility of count-to-count evidence, which is ordinarily prohibited. His Honour wrote as follows:

297 When an accused faces multiple charges in an indictment involving allegations by different complainants, evidence relating to the counts concerning one complainant can generally not be used to prove the counts relating to the other complainant, and vice-versa….That rule flows from the limits the law imposes on the Crown's ability to adduce evidence concerning extrinsic acts of discreditable conduct by an accused….

298 Evidence tending to show an accused is of bad character or the type of person likely to commit the offence(s) charged is presumptively inadmissible. Such evidence can occasion two kinds of prejudice. The first is moral prejudice, especially where the evidence is of extrinsic acts of misconduct that are more reprehensible than the offence(s) charged and thus more likely to lead to a conviction based on an improper inference. The second is reasoning prejudice, which involves the potential distraction of the jury from its proper focus on the offence(s) charged….

299 However, the prohibition against admitting evidence of extrinsic misconduct (“similar fact evidence”) is not absolute. As Binnie J. remarked in Handy, at para. 41, “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.”

300 The law permits the admission of extrinsic misconduct evidence concerning the accused if the Crown establishes, on a balance of probabilities, that in the context of the specific case, the probative value of the evidence concerning a particular issue outweighs its prejudicial effect…. In other words, an accused's uncharged discreditable conduct is “unusually and exceptionally” capable of admission “if it survives the rigours of balancing probative value against prejudice”.

301 In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case and the strength of the potential inference(s) that the evidence is logically capable of supporting….

302 As a result, the probative value assessment does not occur in a vacuum. Instead, to have probative value, the evidence must be relevant to a material issue in the case, and the inference that the evidence invites must be compelling enough to have at least some degree of influence in its determination. In short, the proposed evidence must have some bearing upon the live issue(s) in the case….

303 In many cases, including this one, the similarity between the offence(s) charged and the extrinsic misconduct evidence supplies the potential source of its probative value. That is because, at a certain point, the circumstances may be so similar that they defy coincidence or some other innocent explanation. Accordingly, the Supreme Court has recognized the connection (or nexus) between the prior discreditable conduct and the offence(s) charged as the principal driver of probative value in such cases….

304 When assessing the connections, the relevant considerations include the proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, the circumstances surrounding or relating to the similar acts, any distinctive features and intervening events, or anything that supports or rebuts the underlying unity of the similar acts…. ( Internal citations omitted .)

V. Analysis

Single transaction

47I am satisfied that the two incidents forming the subject matter of each count can be viewed as a single transaction because they are so tightly connected in time, place and circumstance. Both incidents occurred in the context of the ED at TWH (albeit in two different spaces). They were very closely connected in time and were not interrupted by anything of substance. Based on all the evidence, they were done as part of an ongoing course of conduct: namely, cleaning (or purported cleaning).

Count to count similar fact application

48While it is not necessary, I would also find that the evidence of what took place in the washroom is admissible as extrinsic evidence capable of being probative of what happened in Rm. 14.

49In his second set of submissions, in response to my questions, Mr. Parry submitted that I ought to approach his similar fact application like that Justice Presser did in Eze, supra, by first finding Mr. Elmajbri guilty of the incident that took place in the washroom and then using that evidence to rebut any innocent or accidental explanation for what happened earlier in Rm. 14. Or, at least, by finding that the actus reus had taken place in the washroom. His concern was that I avoid circular reasoning.

50This case is not like Eze. In that case, Justice Presser was able to reject the accused’s evidence and find that he had committed a sexual assault in a washroom in the PATH. There was objective evidence to assist her. Also, the accused had conceded that he had committed two simple assaults on the complainant. The question was whether the subsequent assault, captured on security cameras, was also sexual in nature. There were gaps in the complainant’s testimony regarding the physical nature of the subsequent assault and the evidence of what had been proved to have taken place in the washroom was probative of the accused’s animus or intention to commit another (or continuing) sexual assault.

51In this case, the defence has not conceded that any criminal offence has been committed. There is no security footage of either incident and I have not made any credibility findings yet.

52I have decided that the better approach in this case is one of admissibility as described in the authorities. In doing so, I propose to take the Crown’s evidence at its highest. This, it seems to me, is the fairest approach to the Crown. It is also fair to Mr. Elmajbri that I not make a finding that he did, or probably did, commit one of the very offences for which he is on trial at this stage.

53The issue to which the washroom incident attaches is whether the alleged contact with MC’s penis was incidental. What is alleged to have happened in the bathroom includes deliberate contact with MC’s penis and anus, a kiss and a direction to keep things “between us.” As described, it would clearly amount to an intentional sexual assault. As such, it invites a compelling inference that what happened minutes prior was also intentional contact of a sexual nature. While the conduct in the washroom is different and more invasive, it is similar enough to meet the threshold in the circumstances: it involves touching of the penis in the context of cleaning by a healthcare professional on a patient in the ED in private. These factors lend cogency to the inference being sought.

54The risk of reasoning prejudice is low. There is little risk that the evidence will confuse, distract or overwhelm me. Given that it is charged conduct, it can not be said to have added to the trial time. Likewise, the risk of moral prejudice is low. As a judge, I can be expected to abide by a self-instruction against general propensity or “bad personhood” reasoning.

55On a balance of probabilities, I would find that the evidence of what happened in the washroom is capable of establishing a situation-specific propensity on behalf of Mr. Elmajbri to sexually assault MC in Rm. 14 and that its probative value is not outweighed by its prejudicial effect.

Credibility and Reliability

MC

56I have strong concerns about MC’s credibility and reliability. He was a very challenging witness. Because his alcohol dependency was so central to his attendance at the ED, and because he had consumed alcohol before making his sworn statement to police, at the outset of his examination-in-chief, Mr. Parry inquired about his alcohol consumption before going to the ED, before speaking to police and before attending court to testify. MC explained that he had had one 500 ml beer in the six hours prior to coming to court and that he could “absolutely” testify. So, we proceeded with his examination-in-chief and some cross-examination.

57On the following day, he was even more combative with Mr. Rotenberg than he had been the previous day. When he replied “interesting suggestion” to a question, he was slurring. I interrupted MC’s cross-examination and excused him so that I could raise the issue with counsel. I also noted that MC’s gait was odd – very upright and measured, as though he was trying to look sober. The problem was obvious to all of us. I then asked to have MC re-enter the courtroom and had a discussion with him. He said he had consumed three beers between midnight and 4 a.m., and that he had not slept. Given his history of consuming approximately nine alcoholic drinks per day, and how impaired he was that morning, it is clear to me that he had not been truthful about the amount of alcohol he had consumed before coming to court. I asked him how he wanted to proceed and he suggested returning after lunch. We did so, and we carried on.

58To be clear, MC’s alcohol dependency is not the issue. It is a disease which does not, per se, make him or anyone else less credible or reliable. However, MC’s consumption of alcohol before attending the ED, before speaking to police and before testifying in court did cause me concerns regarding his reliability. He often preceded answers, to the police and in court, with phrases like “to the best of my recollection” or “based on what I can remember,” and wrote these off as nothing more than “common qualifiers.” He also told police that he could not recall “good chunks” of what happened in the washroom. He explained that this was difficult on a number of levels, including temporal, “through the fog.” While shock or trauma are possible explanations, I find he has minimized the amount of alcohol he consumed prior to these events, as he did in court. It must have been a factor that night.

59As the parties agreed, MC presented as haughty throughout his testimony. This became more pronounced almost immediately as Mr. Rotenberg began his cross-examination and is not explained only by the effects of alcohol. MC was combative, sarcastic and argumentative. I will limit myself to a few examples. For instance, MC would not agree to obvious things such as the effects of time on memory, or that his memory of what was said in Rm. 14 was not as reliable as what could be heard on his recording. When Mr. Rotenberg attempted to refresh his memory from a transcript, his answers were variations of “that refreshes my memory about what was said.” MC is a highly educated and intelligent person who took considerable time to give his answers and often displayed great care in his word choice. He also got ahead of Mr. Rotenberg from time to time, predicting what was coming next. He understood questions like that and knew that he was not answering them directly.

60When Mr. Rotenberg asked him if they could agree that what happened in the washroom took “around 10 minutes” MC replied, “I can’t necessarily agree. I’ve said 10 to 11 minutes.” When Mr. Rotenberg put to him an alternative version of events, as he was required to do, MC’s response was “that’s a fascinating suggestion, please go on.” At one point, he accused Mr. Rotenberg of “empty word poaching.” Later, he challenged him to take issue with his use of the word “purvey.”

61It seems to me that the testimony of a witness whose stance immediately changes at the outset of a polite and professional cross-examination, like the one Mr. Rotenberg was attempting to conduct, must be approached with some caution. MC’s dramatic shift in attitude added to my concerns that he was not doing his best to tell the truth.

62I also found MC to be evasive at times. For example, when he was being cross-examined about whether the contact in Rm. 14 was “skin on skin” or if Mr. Elmajbri was wearing gloves.

63Most importantly, MC’s testimony was inconsistent with prior statements in material ways. In his statement on the officer’s BWC, MC said that Mr. Elmajbri had pulled down his pants down around his ankles in the washroom. In his sworn statement, he told the officers that Mr. Elmajbri had asked him to pull down his pants, which he did. When confronted with this, he stated that Mr. Rotenberg’s suggestion was “ridiculous” and then argued that Mr. Rotenberg was conflating what he said about the two different locations. He then said that Mr. Elmajbri had directed him to lower his pants in the washroom. In my view, this is an important matter, and it is not something that MC was likely to have been mistaken about.

64MC testified with conviction that Mr. Elmajbri touched his penis in Rm. 14. However, he told the police that he felt fingers move across “basically the top of my pubic hair and possibly to my memory also touching the top of my penis as it moved across the top of my pubic hair.” His penis was “probably in a ventral position” at the time. He then added that his pubic hair “was definitely contacted,” and that he believed the ends of the fingers also contacted the top of his pubis.

65Of course, touching someone in the area of their pubic hair without their consent can be a sexual assault. But that is not the question in this trial. MC chose to employ the word pubis when speaking to police, and glans when testifying. They are not synonymous, and MC knows that. Moreover, unlike his trial testimony, his first statement was couched in possibility. More importantly, whether Mr. Elmajbri touched the tip of his penis – a highly innervated and extremely sensitive part of the body – is not likely to be something that MC would have been mistaken about.

66At trial, MC was adamant that Mr. Elmajbri had directed or ordered him to lie down on the bed and later to accompany him to the washroom because he needed to clean his genitals. Yet, he told police that “it was suggested” that he “maybe lay down.” His own recording also belies those assertions. Regarding the bed in Rm. 14, Mr. Elmajbri offered MC a warm blanket and went to get one. Then, he told him “Just come, relax” and MC replied “Okay… I’ll try not to mess up your sheets” and laughed. Regarding going to the washroom, the contrast is even clearer. First, Mr. Elmajbri had already mentioned cleaning.[1] Second, in the portion that had not been transcribed, Mr. Elmajbri can be heard to say “if you want to go to the washroom, I’ll help you.” After that, MC can be heard to say “OK” twice, before Mr. Elmajbri says “Come with me I’ll show you the washroom.”

67On the subject of cleaning, MC was inconsistent. He testified that he had not been told about being cleaned. Yet, in his statement to police, he said that he had been told that he needed to be cleaned. When he was confronted about his knowledge, he replied that he did “not necessarily agree.” At that point, the part of the recording that had not been transcribed was played for him. He replied that he was not sure who was speaking. He also said he did not hear himself say “OK.”

68This was not credible. I was able to hear him say “OK” and it is apparent, based on the entire recording and the context, that the voice offering to help if he wanted to go to the washroom was Mr. Elmajbri’s.

69Lastly, MC testified that Mr. Elmajbri cleaned him using both hands like someone washing dishes. He also could not recall noticing whether one of Mr. Elmajbri’s hands was disfigured. When Mr. Rotenberg asked Mr. Elmajbri to show the Court his hand, MC argued that it could have been masked by a glove. With respect, gloved or not, it would be virtually impossible to miss.

70I am unable to accept MC’s testimony where it is contested.

Mr. Elmajbri

71I will spend less time explaining why I felt that Mr. Elmajbri’s testimony was largely credible and reliable, and why I accept most of it. This is for two reasons. First, the burden of proof does not rest on Mr. Elmajbri. Second, as is often the case, the Crown did not have a series of prior statements with which to confront him.

72I agree that Mr. Elmajbri allowed himself to delve into and repeat self-serving evidence about how caring he is of others and that this can raise concerns regarding credibility in some cases. However, it did not cause me to disbelieve the material parts of his evidence, much less reject it in its entirety. Importantly, I did not find him to be evasive. Rather, I felt that he was doing his best to answer the questions he was asked as he understood them. I note that English is not his first language. Also, the self-serving aspects of his testimony may have been a biproduct of the emphasis that counsel placed on Mr. Elmajbri’s tragic experience during the civil war and his journey to Canada, where he had to work hard to become a PSW. This was over-emphasized in both the content and structure of Mr. Elmajbri’s examination-in-chief.

Application of the single transaction and count-to-count similar fact rulings

73While permitted by my rulings, consideration of the evidence relevant to Count 2 in relation Count 1 does not assist the Crown in this case. Its probative value and the strength of the inference sought are entirely dependant on MC’s credibility and reliability. It is also extremely unlikely that MC’s penis was in a “ventral” position when he lay down on the bed. As such, it is not plausible that Mr. Elmajbri would have expected to make contact with it by moving his hand in the way that has been described. The evidence does little to support the inference that Mr. Elmajbri was testing the waters or to negate the possibility of incidental touching in Rm. 14.

Findings

74Based on my assessments of the credibility and reliability, my findings on the most contentious points are as follows. I will explain some of them in more detail below.

• Mr. Elmajbri was wearing gloves at all material times. MC’s testimony about this was inconsistent and vague. Mr. Elmajbri explained that this was all the more critical since COVID. That accords with logic and everyday experience.
• MC appeared unwell, to some extent disheveled and smelled unclean. He told the police he appeared unwell. It makes sense that his shirt was unbuttoned because the doctor had palpated his abdomen. It also happens to be how he wore it during his video statement to police. I accept Mr. Elmajbri’s testimony that he had a backpack and a large bag, and that he smelled unclean.
• By his words and actions, MC consented to being cleaned as described by Mr. Elmajbri.
• MC shared his troubles with Mr. Elmajbri in the washroom.
• Mr. Elmajbri did not pull MC’s pants down. He asked MC to, and MC did so.
• MC is mistaken about Mr. Elmajbri cleaning him with both hands and using only soap from the dispenser. I accept that Mr. Elmajbri was wearing gloves, used only his right hand and used soapy cloths from the package as per his practice.
• Mr. Elmajbri did not insert his finger into MC’s anus and he did not try to kiss him. Mr. Elmajbri denied doing so and I am unable to accept MC’s testimony about this.
• Mr. Elmajbri did not have access to MC’s private health information.
• MC told Mr. Elmajbri that he was struggling with addiction in the washroom.
• Mr. Elmajbri was not referring to a sexual assault when he talked about keep things between them.
• MC’s demeanour as he walked from the washroom to Rm. 14 does not support the Crown’s case.

75There are three main areas where Mr. Elmajbri’s credibility is most in question. First, whether Mr. Elmajbri and other PSWs routinely clean patients in the ED, particularly in the washroom. Second, whether MC consented to being cleaned. Third, whether PSWs have access to patients’ medical information. It is understandable that Mr. Parry challenged these aspects of Mr. Elmajbri’s presentation most forcefully.

76Regarding the first question, Mr. Elmajbri’s testimony, which is credible overall, is uncontradicted. I am unable to find that his account is implausible in the context of a busy inner-city ED.

77As for consent, I accept Mr. Elmajbri’s testimony that MC agreed, by his words and actions, to be cleaned. This is borne out by the context, which includes:

• the package of wipes that Mr. Elmajbri was showing him,
• his admission to police that he looked unwell when Mr. Elmajbri first entered Rm. 14,
• his statement to police that he understood that being cleaned was the reason for going to the washroom,
• the fact that he understood that this meant his private areas,
• his own recording, in which he can be heard saying “OK” and
• the fact that he pulled down his own pants.

78I agree with Mr. Parry that for such consent to be valid, it had to be at least informed enough that MC knew that he was agreeing to have his private areas cleaned. I find that he did.

79Third, I accept Mr. Elmajbri’s uncontradicted testimony that PSWs do not have access to patients’ private healthcare information. That assertion is not implausible. Rather, it makes sense to me as a function of my lived experience and knowledge of the degree to which one’s privacy in personal health information is protected.

80This undermines the Crown’s theory that Mr. Elmajbri knew about MC’s health condition or alcohol dependency before the two went to the washroom. So does the fact that when Mr. Elmajbri returned to Rm. 14 and repeated that he, too, had been addicted, MC asked him “Alcohol or something else?” Mr. Elmajbri’s account is credible. It is also more likely, considering all the evidence. I accept that MC told him about his addiction in the washroom and that Mr. Elmajbri assured him that their conversation would stay between the two of them.

81In passing, I was not persuaded that Mr. Elmajbri would have smelled alcohol on MC’s breath, as Mr. Parry suggested. MC was not asked whether his breath would have smelled of alcohol at that time. Also, on his own account, at least four hours had passed since his last drink.

82Nor was I troubled by the fact that Mr. Elmajbri did not walk MC to and from the washroom despite having been concerned about him. I accept that MC was a patient like many others, that Mr. Elmajbri was doing his job and had reached the end of his shift.

83Lastly, I do not accept Mr. Parry’s argument that MC’s demeanour as he returned to Rm. 14 supports his version of events because I am unable to find that he appeared to be in shock. First, Mr. Parry never asked MC to comment about his own demeanour as depicted in the security footage. Second, if it is different from how he seemed when he walked to the washroom, it is similar to how he walked to and from the witness box on the second day of his testimony, when he was impaired. That is, slowly and in a measured and careful fashion. No meaningful inferences can be drawn from the security footage.

Vitiated consent

84The Crown has not proved beyond a reasonable doubt that MC’s consent was vitiated by Mr. Elmajbri’s position as a healthcare worker. Mr. Parry’s argument hinges entirely on MC’s credibility, which I have already addressed. His blanket assertion that he was following orders of a healthcare practitioner is not borne out by his recording. Moreover, he showed no signs of diffidence in the recording of his discussion with the physician, which Mr. Parry presented at the end of the Crown’s case. My observations of MC’s presentation in court are also relevant, given the power imbalance that can exist between counsel and witness in the context of cross-examination – particularly in a sensitive case. Even though he was unwell, I do not accept that MC submitted to, or was induced by, an exercise of Mr. Elmajbri’s position of trust, power or authority.

Absence of evidence

85The absence of evidence and inadequacies in a police investigation can be important considerations in determining whether the Crown has proved a case beyond a reasonable doubt: see R. v. Bero, [2000] OJ No 4159 at paras. 56-58 (C.A.). While the Crown’s case against Mr. Elmajbri may not have required expert testimony, the absence of evidence from a PSW or others who work in the ED was problematic. It may have led to exculpatory evidence regarding access to personal health information and the practice of cleaning patients.

VI. Conclusion

86For these reasons, I find that the Crown has not proved beyond a reasonable doubt that Mr. Elmajbri committed a sexual assault on MC. Mr. Elmajbri is therefore entitled to be found not guilty on both counts.

VII. Some Closing Thoughts

87In his role as a PSW, Mr. Elmajbri relies on assumptions, statements and actions regarding patient consent, rather than on clear questions and answers. He testified more than once that he has always done it this way, is proud of how he engaged with MC and would conduct himself the same way again. Whether or not he is bound to take the same steps as a physician in establishing consent is not for me to say. However, his approach appears to call for additional training in this regard, if only to help him avoid future misunderstandings or allegations.

Released: June 27, 2025

Justice Patrice F. Band

1See p. 31 of the transcript, at line 907, as discussed during Mr. Rotenberg’s re-examination of Mr. Elmajbri.