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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Sales, 2026 ONCJ 505
DATE: 2026 07 23
COURT FILE No.: Kenora 1511-998-24-15102549-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
Fergentino Sales
Before Justice E J Baxter
Heard on November 4, 7, 2025, March 6, 12, April 22, June 10, 24, July 23, 2026
Reasons released on July 23, 2026
Ryan Gill, Stefanie Beaudoin, Roxanne Derouard.................... counsel for the Crown
Sam Green...................................................... counsel for the accused Fergentino Sales
[1] Fergentino Sales stands charged with 2 counts of sexual assault contrary to s. 271 of the Criminal Code. The crown proceeded by way of indictment, and Mr. Sales elected to be tried in the Ontario Court of Justice. Jurisdiction and date of the offenses were admitted. Mr. Sales participated in his trial with the assistance of a Tagalog interpreter.
[2] Mr. Sales is accused of sexually assaulting two female residents of a Kenora nursing home. He was employed via a temp agency out of Winnipeg as personal support worker (PSW). The offenses were alleged to have occurred on October 20 and November 7 of 2024.
[3] D.S., the complainant, testified via Zoom from her bed at the nursing home. D.S. said she was 73 years of age, a resident of the home for the past four years, and she provided her room number. D.S. described her daily routine and the level of care and assistance she requires as she is bedridden and does not leave her room.
[4] D.S. said she had a catheter removed from her urethra some days before the incident but relies on a “pad” or adult diaper. PSWs have to clean her bottom and front areas when she soils her pad. D.S. stated she had been bedridden for a year at the time of her testimony, but when she was first admitted to the home, she relied on a walker.
[5] As a result of her condition, D.S. remains in her room and does not socialize, take part in activities, and she takes her meals in her room. She denied knowing the other complainant in this matter.
[6] On the morning of November 7, 2024, D.S. was being cleaned by a male PSW. By this time, the catheter had been removed as she no longer required it. When the PSW entered her room, D.S. said she became nervous because of an encounter she had with him the previous day. D.S. stated the PSW first cleaned her “front” using a spray and a wet cloth. He then had her roll onto her side, while he cleaned her bottom or back area because she had a bowel movement in the night and was soiled.
[7] D.S. stated after he cleaned the back, the PSW had her return to lying on her back and he cleaned her front again saying he saw something there. D.S. said the PSW used the cleaning spray and another wet cloth and began to inspect and rub her front area back and forth. She said the PSW made comments to her about needing to be clean and whether she could feel anything.
[8] D.S. described the PSW “rubbing and rubbing” and putting pressure on the area. She said, “And he just kept applying the pressure and his head was right down and he, he moved his hand. He has his, uh, hand on my front and with those three fingers and he was pushing me back and forth, back and forth, back and forth. He wouldn’t stop…I felt so helpless.” (Nov 4 transcript page 32)
[9] The PSW called her “beautiful”, and once he left, D.S. called for help. D.S. said when she usually gets cleaned the PSWs just wipe without applying pressure or pushing hard. D.S. described the male PSW as Filipino, very friendly and with a name she could not remember or pronounce.
[10] D.S. said the day before on November 6, 2024, the same male PSW came into her room to change her and to put lotion on her feet. While the PSW was rubbing the lotion into her feet, D.S. said he was making comments about her feet being “beautiful” and pretending to kiss them. D.S. said she was uncomfortable with how the PSW was handling her feet and what he was saying. D.S. said the PSW’s behaviour was “weird” and “unprofessional”. D.S. hoped the PSW would not come back.
[11] When questioned whether D.S. knew the other complainant, G.C., D.S. denied ever knowing or meeting G.C. She could not describe her and was only aware of her name because she is on the “docket” along with D.S. Both women lived in the same unit at the nursing home, but D.S. said she never encountered G.C. but knew she is deceased.
[12] Defense counsel, cross-examining D.S., was able to have D.S. agree the incident involving the lotion on her feet may have taken place a week prior to the sexual assault – not the day before, according to the statement D.S. gave to police on November 7, 2024.
[13] During cross-examination D.S. said she was too afraid to say anything or to tell the PSW to stop but that he was hurting her and rubbing her “faster and faster and faster”. She wanted to give him the benefit of the doubt while she wondered to herself what she could do but call a nurse for help, which is what she did after the PSW left. The nurse then reported D.S. concerns to upper management who then had the police come to the home.
[14] D.S. said the PSW never left her room during the cleaning, yet the CCTV footage indicates he left and re-entered the room twice during the cleaning session.
[15] D.S. also said when she saw the document she referred to as a “docket” contained the name of the other complainant, she was “shocked”, because she wanted the PSW stopped, and was upset to see another person had allegedly been sexually assaulted by the same PSW named on the papers she received from police.
[16] D.S. did not agree the PSW was merely doing a thorough cleaning of her bottom and genital areas given the loose nature of the stool. She also disagreed her permission was sought before the PSW commenced cleaning her or that she told him to be thorough.
[17] Under cross-examination, D.S. acknowledged she has an active civil claim against the care home, Mr. Sales, and the temp agency who placed Mr. Sales at the home. D.S. stated the purpose of the civil claim is to stop Mr. Sales from assaulting anyone else and not to help pay for her care.
[18] The next witnesses were former or current employees of the nursing home who shared what they understood occurred and the proper/expected practises and procedures of the PSWs, nurses and other staff of the home. The court was also provided information about the operation of the home, the different units and categorization of residents.
[19] Once the complaint by D.S. was received by management of the home, Mr. Sales was identified as the PSW in question, and he was promptly dismissed and removed from the home. Mr. Sales was escorted from the premises and did not return.
[20] The court also learned the PSWs do not have access to the residents’ charts or personal medical information; all the staff and nurses are sworn to confidentiality, and cameras are present in the hallways and common areas of the home, but not in the residents’ rooms.
[21] The court received a video of the hallway and staff movements around D.S.’s room at the home. Mr. Sales is seen on the video entering D.S.’s room around 9:27 am on November 7, 2024, and finally leaves her room around 10 am. He is seen going in and out of the room for supplies from a nearby utility room.
[22] The witnesses were clear that D.S. and G.C. did not know each other and did not talk about what occurred with Mr. Sales. While some may have been curious about the police presence at the home or about Mr. Sales no longer working at the home, no details were shared to staff or residents.
[23] The former Director of Care testified and described the proper method to clean and wipe a resident after a bowel movement. She noted once the front/vaginal area is cleaned, the PSW should concentrate on the back area, so the PSW does not have to return to the front area to clean again. The importance of avoiding infection by having fecal matter enter the vagina or urethra of the resident was stressed to the staff. Staff were trained to use brown wash cloths and/or wet wipes to clean a resident. The messier the bowel movement, the more wiping and cloths/wipes would be required, but there should be no reason for a PSW to wipe the same spot “consistently”.
[24] Staff are also instructed to tell the residents what they are doing, if the cloth will be cold or rough, to check to be sure the resident is not being hurt. A “gentle approach” was required given elderly residents have thin, delicate, or sensitive skin. In addition, staff are to be gentle to avoid any verbal or physical outbursts from residents.
[25] The bathing procedure was also described as it is relevant to the allegation involving G.C.. The more mobile a resident is, the less help they need in the tub or shower. A PSW is to assist with bathing or showering as needed/requested to avoid upsetting or overstepping with a resident. The tub and shower have a chair that can be moved up and down with an open access underneath to allow a PSW to clean the resident’s bottom or genital areas, if the resident needs help with cleaning those areas.
[26] With respect to G.C., the other witnesses noted G.C. was social, outgoing, friendly and very involved in activities at the home. G.C. and D.S. did not know each other, did not socialize or visit each other and did not have rooms near each other on their unit. There were 32 residents on their unit. Even though G.C. was in a wheelchair, she was quite independent and moved about the home well. G.C. came to the home after D.S.
[27] The former Director said Mr. Sales was called “Tino” by other staff and residents. There were no other Tinos at the home. According to staff witnesses, the home employs about 100 staff.
[28] The court also learned the home was obligated under this province’s Long-Term Care Act to post a public notice at the home when the home as been found not in compliance with the Act regarding any incidents. Typically, the notice would not be posted until 2 to 4 months post-incident. No details of the incident can be posted except that an allegation of assault had been made, and that the home was not compliant. Staff are not permitted to know details of an incident, and they are not permitted to discuss incidents with residents or visitors.
[29] The former Director, under cross-examination, acknowledged D.S. was aware of another incident, but it was not asked or clarified when D.S. made the former Director aware of her knowing there was another incident. The court was also told when police or paramedics attend at the home, it does not generate a lot of interest with residents or staff.
[30] It was acknowledged G.C. was an advocate and tried to help other residents. There may have been a possibility G.C. was aware of the incident with D.S. because some information may have been on her chart that a nurse may have seen and possibly shared with G.C., but the court has no evidence of that occurring.
[31] G.C. was described as independent enough to dress, feed and wash herself. She needed help to wash her hair and her back and occasionally her front, if she asked. Baths were restricted to 20 minutes, so the resident does not get cold.
[32] A nurse who testified about the day Mr. Sales was terminated noted when she saw Mr. Sales escorted from the building, she was told there was an incident with Mr. Sales and D.S. involving her “peri-care” and a bowel movement. The nurse said others were talking about D.S. being upset and it involved Mr. Sales. Among the staff, news like that can spread like “fire”; however, the nurse had no information about the residents knowing anything.
[33] The nurse denied knowing or hearing anything about the G.C. incident. She also said G.C. and D.S. did not know each other and did not associate with each other. D.S. was described as a “little OCD”, very meticulous and particular but also very “nice” and “polite”.
[34] The nurse said if staff were discussing the incident involving D.S. they were talking softly, quietly at the nurses’ station, which is not near any resident rooms. She was confident no residents heard the conversation.
The Hearsay Application
[35] On the March 10, 2026, court day, the crown commenced its hearsay application in a voir dire. Materials filed in support of the application were the application, response, supporting affidavits, the transcript and videos of the statements of G.C., books of authorities and facta of both parties.
[36] According to the materials filed, police attended at the nursing home on November 15, 2024, to investigate a complaint of sexual assault and to interview G.C.. She was interviewed by two officers who video/audio recorded the interview. It appeared to the officers G.C. was alert, aware, sober, cooperative and somewhat reluctant to give her statement because G.C. did not want to get any PSW into trouble, but she also did not want any other residents to be victimized.
[37] The statement taken on November 15, 2024, was not done under oath; however, police returned to the home on June 10, 2025, to obtain a “commissioned statement” from D.S. and G.C. by having them review their earlier statements and to adopt them under oath in the presence of a commissioner of oaths. The women were seen separately, with D.S. being seen first, followed by G.C. in their own rooms. G.C. did not make any changes to her statement. She was cautioned about the consequences for making a false statement.
[38] The police affiants stated their presence at the home did not raise a lot of interest. They saw more staff milling about the hallways than residents, and no one stopped to ask them why they were there.
Statement by G.C.
[39] On November 15, 2024, (affirmed under oath June 10, 2025) G.C. gave a statement to police regarding her encounters with Mr. Sales. G.C. said on October 20, 2024, Mr. Sales came into G.C.’s room to help put her compression stockings on. G.C. said when Mr. Sales put the stockings on, he kissed her foot, “caressed” her leg and he was “almost dry humping” her foot, which made her uncomfortable and left her wondering if Mr. Sales had a “foot fetish”. (statement transcript page 5, line 21) She later added Mr. Sales was crouched down and then started to move his hips and said something about her feet to her. She thought to herself Mr. Sales was not trying to keep his balance.
[40] October 20, 2024, was also a regular bath day for G.C.. Baths were usually done in the late afternoons or early evening. G.C. said someone else was to give her bath that day, but Mr. Sales indicated he would do it. While in the tub room, G.C. said she was capable of washing her front on her own, but despite G.C. having washed her breasts herself, Mr. Sales washed them again, and G.C. described what he did as “groping” them. He did not ask permission to wash her breasts. G.C. also said Mr. Sales said “a couple of inappropriate things” she could not recall.
[41] G.C. said Mr. Sales washed her back and her behind, but he was moving his hand, with a cloth, all the way from the front to the back about six or eight times, which she found to be improper and made her feel “dirty”. Her usual routine was for a PSW to do a wash of only two or three passes.
[42] G.C. told police the bath with Mr. Sales was not the usual routine for her. Normally her bath consists of being helped to undress, to wash/rinse her hair and to wash her back and bottom. She was capable of washing everything else without assistance.
[43] G.C. felt Mr. Sales was “creepy”, and “weird”, touched her without her permission and did not follow her regular bathing routine. She was concerned he might be doing things to other less capable or more vulnerable residents, and she wanted to make sure he was stopped. She had also decided if she did see Mr. Sales again, she would ask that he not help her anymore.
[44] G.C. said she had not heard any “chatter” about any other incidents, and she knew “things go through the grapevine pretty quickly”. (transcript page 19, lines 16-19) G.C. said she had not told anyone else about what had happened except her family and a director of care at the home.
Voir Dire
[45] The crown brought an application to have the statement of G.C. admitted under the principled exception to the hearsay rule. G.C. died on October 3, 2025, at age 72. Defense conceded the necessity threshold has been met given the passing of this complainant.
[46] The issues to be resolved related to the threshold reliability of the statement and its ultimate reliability and admissibility. I informed counsel at the conclusion of the voir dire and after I heard their submissions on the admissibility of G.C.’s statement that I will admit the statement and provide my reasons later.
[47] Hearsay evidence is presumptively inadmissible unless it can be admitted under the principled exception to the hearsay rule. For hearsay to be admitted, it must be shown to be inherently reliable or that it may be tested, despite it being hearsay evidence. In other words, a statement is only admissible where “it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”. (R. v. Khelawon, 2006 SCC 57 at paragraph 49)
[48] Prior to admitting out of court statements, the court must act as a gatekeeper when making a preliminary assessment of the threshold reliability of a hearsay statement. There is a distinction between threshold and ultimate reliability. The former deals with the admissibility of the evidence on a balance of probabilities. The latter is a matter reserved for the trier of fact, whether a judge alone or a jury, to determine the weight, if any, to be given to the statement when considered with the entirety of the evidence. It is crucial not to predetermine ultimate reliability at the admissibility stage: Khelawon, para. 93; Bradshaw, at para. 42; and R. v. McMorris, 2020 ONCA 844, at para. 23. (R. v. Ernest, 2026 ONSC 1961)
[49] The applicant bears the burden to prove, on a balance of probabilities, the hearsay evidence is necessary and reliable to meet the threshold admissibility requirement. Although the defense has conceded the requirement of necessity has been met, the requirement of reliability cannot be considered in isolation of necessity. The inability to cross-examine the declarant can be problematic for the accused to be able to test the evidence.
Threshold Reliability
[50] The leading cases from the Supreme Court of Canada guide and direct triers of fact to consider and analyse hearsay evidence to determine its ultimate admissibility. An accused is entitled to a fair trial and is entitled to make full answer and defense. The court’s role is to find the truth. In certain cases, the exclusion of hearsay evidence can hinder the truth-finding role of the court. (Khelowan and R. v. Bradshaw, [2017] SCC 35)
[51] For threshold reliability to be found in an out of court statement tendered for the truth of its contents, procedural reliability, or substantive reliability or a blend of both can be present to admit the evidence.
[52] In the present case, the crown argued procedural reliability has been established because G.C. gave her statement by video/audio recording on November 15, 2024, which was 26 days after the incidents with Mr. Sales were alleged to have occurred. On June 3, 2025, an oath was administered, a caution given, the statement was commissioned, signed, and the consequences of lying were explained to G.C.. G.C. did not change her statement. (see Bradshaw, at paragraph 28.) I agree procedural reliability has been satisfied in this case, albeit significantly after the initial statement was made.
[53] Because G.C. was not available to testify in court and be subjected to cross-examination, the weight of her evidence is impacted, not the admissibility of her testimony. (See R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, paragraph 79)
[54] Substantive reliability can be used to render hearsay evidence admissible. The evidence must be determined to be inherently trustworthy, the indicia of which can be the circumstances under which the statement was made and any evidence that corroborates or contradicts the statement. (See Bradshaw, paragraph 30)
[55] A trial judge must be satisfied a statement is “so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process.” (Bradshaw, paragraph 31)
[56] Corroborative evidence can be used when assessing threshold substantive reliability. The Supreme Court stated at paragraphs 45 to 49 in Bradshaw that corroborative evidence must go to the accuracy of the material aspects of the hearsay statement and that the only likely explanation for the hearsay statement is the declarant’s accuracy, in that there is no other plausible alternative explanation for those aspects of the statement. Mere speculation will not suffice for the reasonable plausibility assessment. (see McMorris, paragraphs 31-34)
Striking Similarity
[57] Corroboration may be found where a statement bears striking similarities to other statements or evidence before the court, the Supreme Court in R. v. U.(F.J.) 1995 CanLII 74 (SCC), [1995] 3 SCR 764, noted several possible explanations for such similarities. Striking similarities can be found to be coincidental, or the product of collusion, or a second declarant had knowledge of the other statements and fashioned their statement based on the contents of the other statement, or influence from a third party, or they are both telling the truth. (paragraph 40)
[58] Striking similarities between two statements from two different complainants can provide sufficient cogency to warrant the admission of the hearsay evidence where appropriate. (See Khelowan, at paragraphs 106 to 108)
[59] Even after the court admits the hearsay evidence, it still remains to the trier of fact to weigh the probative versus prejudicial impact of admitting the hearsay evidence and to decide ultimately to exclude the evidence or not. The ultimate admissibility of the statement of G.C. will be dealt with later.
[60] With respect to the statement of G.C. and the evidence of D.S., any similarities between the two complainants must be striking, and the only explanation, on a balance of probabilities, is both women were telling the truth, or in other words, none of the other explanations are possible in the comparison, on a balance of probabilities.
[61] In comparing the statements of G.C. and D.S., the crown invites the court to find certain material aspects of the two statements relate to the allegations that Mr. Sales behaved in the same or strikingly similar way toward the two women’s feet by complimenting them and either kissing or pretending to kiss their feet.
[62] Further, according to the crown, when the court compares the sexual assault allegations in the bathing or cleaning of the women, the rubbing of the genital areas of the women with Mr. Sales’s hand and a cloth/wipe, the material aspects of the similarities are clear.
[63] The defense, rightly, is concerned about the possibility one or more of the other explanations for the striking similarities exists in the present case.
[64] Here, I am not satisfied, on a balance of probabilities, collusion occurred. The court heard repeated evidence from D.S., G.C., staff, and police the two women did not know each other, did not socialize with each other, and did not visit one another. D.S. was described by all witnesses as a person who never left her room, was bedridden, and only spent time with her own friends and family. She took her meals in her room and her baths in her bed. I find the likelihood of the two women getting together to concoct a story to have Mr. Sales fired, or worse, highly improbable.
[65] Moreover, I am not satisfied either of the women fashioned her story to fit or match the story of the other. While the two women were in the same unit, their rooms were not near each other, and the chances one could overhear anything said by the other appear to be highly unlikely.
[66] With respect to staff, the court heard evidence that while some staff may have been aware of Mr. Sales being terminated for something that happened with the peri-care of D.S., none of the witnesses or affiants indicated any staff told D.S. or G.C. any details of what may have happened for Mr. Sales to be terminated. The witnesses were clear about the confidentiality rules and procedures, including who had access to any resident files.
[67] While some staff and residents might have an idea something occurred, details were not shared given the confidentiality/privacy rules and requirements in the home. Witnesses stated people might talk or ask questions, the staff simply were not permitted to discuss private matters with residents or other staff.
[68] The nurses’ station was not near resident rooms, and when Mr. Sales was terminated and escorted from the building, a witness noted staff discussed the situation quietly and was relatively certain no residents could hear their quiet discussion.
[69] The posting of a notice of non-compliance as required under the home’s governing legislation, did not reveal any details about who was involved in the non-compliance notice, nor any details of the incident that resulted in the posting. Furthermore, the non-compliance postings usually do not happen until 2 to 4 months post-incident.
[70] I also do not find Mr. Sales was a target of either or both women. G.C. did not report her concerns for over three weeks, and her explanation for the delay was that she was unsure what happened to her was criminal in nature, that she did not want Mr. Sales to lose his job, but she was concerned other more vulnerable residents might fall victim to similar behaviour and be powerless to stop or prevent it. She felt an obligation to report the incidents. I do not find, on a balance of probabilities, G.C. had a motive to fabricate her story.
[71] Finally, I am not satisfied the police officers or staff who interviewed G.C. did or said anything to influence G.C. such that any portions of D.S. story were provided or alluded to in their interactions with G.C.. I do agree, however, in the video statement, the police officers are not visible on camera, and G.C. appears in the video in profile only. It is hard to discern if any visual cues were being provided to G.C. by the officers, but I did not observe any indication by G.C. she was responding to any cues either.
[72] Therefore, the only two possibilities to explain the striking similarities between the two statements are coincidence and/or that G.C. was being truthful.
[73] The test outlined in Bradshaw support a finding of substantive reliability in this case. In addition to the corroboration and the procedural reliability found in the statement of G.C., on a substantive basis, when one views the videos of G.C. telling her story to the police, it is apparent she was taking the matter seriously, was clear about what she could remember or not, gave a reasonable explanation for the delay in her reporting the incident, her motivation to report the incident does not appear to be motivated in malice or ill will toward Mr. Sales, she appeared to be alert, sober, aware, cooperative and matter of fact in her interview.
[74] The questions asked by police appear appropriate and mostly open-ended. There did not appear to be any coaching or coaxing. G.C. also mused about whether what she reported was criminal in nature. She was clear about how she felt during the incidents and could differentiate between her normally expected routines in her care compared to the departure from her routine care she perceived with Mr. Sales.
Similar Act Application
[75] Following the hearsay application, the second application and required voir dire regarding similar act evidence was commenced by the crown on June 10, 2026. A previous court day for the similar act application on April 22, 2026, was shortened when the court alerted counsel to the Ontario Court of Appeal decision in R. v. Ateya, 2026 ONCA 287 had been released earlier that day. Counsel agreed they needed time to review the decision, which could result in their application materials needing to be amended.
[76] Similar act evidence is presumptively inadmissible, except where it can be shown, on a balance of probabilities, the probative value outweighs its prejudicial effect on the accused. Further, similar act evidence does not have to be determinative of the guilt of the accused to be admissible. (See R. v. Handy, [2002] SCC 56)
[77] In this case, the crown seeks to have count to count similar act evidence admitted to show Mr. Sales has a propensity to engage in the type of conduct with which he has been charged, and that he did, indeed, engage in that conduct with the two complainants, D.S. and G.C., absent coincidence or other explanation. (Handy, ibid)
[78] The evidence sought to be admitted must be relevant and probative, and the court must avoid moral or reasoning prejudice. The recent decision of the Ontario Court of Appeal clarified and affirmed that where similarities are taken together, they can support the inference the alleged acts are more likely to have occurred. (R. v. Ateyah, (2026) ONCA 287)
[79] The risk or reality of collusion or tainting must be addressed by the court in the analysis. Given the finding I have made above regarding collusion and coincidence, I need not say anything more about this issue, except to reiterate I am not satisfied, on a balance of probabilities, that G.C. and D.S. colluded, conspired or jointly concocted their stories to have Mr. Sales fired or charged. Moreover, I am not satisfied there is sufficient evidence to show the evidence of the two complainants here was tainted or influenced by any third parties at the care home.
[80] However, I do note the date of the incident involving G.C. was only made known to her by a director of care who reviewed CCTV footage to determine which date her bath with Mr. Sales was done. She had no independent recollection of the date but for an employee providing that information to her. The degree of influence or tainting is minor given the date of alleged offenses is an admission made by defence.
Probative Value
[81] In the present case, the similar act evidence shows the accused was employed as a PSW at the care home. He is accused of making comments about the two complainants’ feet while doing something in relation to foot care that made the women uncomfortable. He is also accused of making kissing motions, and with G.C. he is accused of “dry humping” her foot when he helped with her compression socks. However, the behaviour with the feet is not the subject of the charges, rather it is the alleged behaviour of the accused while bathing or cleaning the women that is the subject of the charges. Mr. Sales is accused of sexually assaulting the women by rubbing their genital areas while he was cleaning their bottoms in the context of a bath and peri-care respectively.
[82] The incidents occurred on October 20, 2024, and November 7, 2024. The court heard there was one incident of sexual assault per complainant. G.C. said she had never encountered Mr. Sales before, and D.S. had encountered Mr. Sales once before the peri-care incident. G.C. said his name was “Valentino”, while D.S. referred to Mr. Sales as “Tino”.
[83] Bathing and cleaning of elderly residents of a care home is one of the routine tasks PSWs must perform in the course of their duties. In this context, the circumstances that would bring a PSW into intimate contact with a resident are not unusual. The issue at trial is whether the method of cleaning Mr. Sales allegedly used with both women crossed the line into being sexual assault.
[84] With respect to G.C., Mr. Sales is accused of “groping” her breasts in the tub despite G.C. saying she had washed that area herself. D.S. did not make any allegation that her breasts were touched by Mr. Sales.
[85] The location and purpose for the contact between the complainants and Mr. Sales were different. G.C. required assistance in the bathtub to wash her back and bottom. D.S. required assistance to clean her bottom and genital area after soiling herself. The levels of mobility and independence of the two women were vastly different. D.S. is bedridden while G.C. was quite mobile and active, albeit with the aid of a wheelchair.
[86] G.C. could not be cross-examined at trial, because she passed away before the trial. D.S. was cross-examined. It is noted, however, G.C. was asked if she told anyone what she told police, and she responded that she had only told a director of care and her family. D.S. said in court she was surprised to learn there was another complainant when she saw the “docket” or some paper the police gave to her. (presumably either the information or the subpoena)
[87] I do not agree the two complaints establish a repeated pattern of behaviour, nor does a PSW performing the required duties and tasks of the job amount to a pattern of behaviour.
[88] The Crown, in its factum, sets out its theory of how Mr. Sales used his position as a PSW to gain access to these 2 elderly female residents in order to sexually assault them to support its application on the count-to-count grounds. (Crown’s factum paragraph 40)
[89] While there are some similarities in the alleged behaviour of Mr. Sales with the two women, in order to admit the evidence of similar fact on a count-to-count basis (which has been argued to be less prejudicial to accused), the court must be satisfied the crown has discharged it burden on a balance of probabilities, by examining the circumstances of the similar acts. The court is to consider the factors set out in Handy.
[90] Here, the incidents took place on October 20, 2024, and November 7, 2024. The two incidents are not significantly similar – the contexts are not similar, nor are the circumstances of the contact. There was one incident per complainant. I did not note any distinctive features in the contact, because the contact was made in the course of routine duties of a PSW. I did not note any intervening event apart from the death of G.C.
[91] Because this is a judge alone trial, on a two-count information, the danger of reasoning and moral prejudice is significantly reduced, posing a much lower risk to the accused of impermissible reasoning. However, the factors outlined in the jurisprudence do place a requirement on the court to engage in a detailed examination of the evidence to be relied upon to justify the evidence being admitted.
[92] While there is some evidence Mr. Sales was in contact with the two complainants here, I am denying the crown’s application to admit similar act evidence for the reasons stated above. I am not satisfied the probative value in admitting the evidence outweighs the prejudicial impact it would have on Mr. Sales.
Trial – Defense Evidence
[93] Following the voir dires, Mr. Sales testified and denied the sexual assault allegations. He was cross-examined and was unshaken. Much of Mr. Sales evidence was corroborated by other witnesses, including the complainants, to various degrees.
[94] Mr. Sales is a permanent resident from the Philippines. He told the court he has been in Canada since 2014. For the first 9 years in Canada, he worked as an industrial butcher. He became a PSW in 2023 after taking a required six-month course and training in Winnipeg, Manitoba.
[95] Mr. Sales said he started work at the Kenora care home on October 9, 2024. He was given orientation and was set up on the computer system PSWs access in the course of their work.
[96] With respect to D.S., Mr. Sales acknowledged on November 3, 2024, he touched her feet when he removed her sock and applied lotion to her foot. He also had to change her diaper or brief, but he recalled the interaction did not take more than 10 minutes given the changing of the brief did not involve any fecal matter. Mr. Sales did not note any issues or problems that day. He denied making any comments or gestures about D.S. or her feet.
[97] On the morning of November 7, 2024, Mr. Sales said he answered a call bell for D.S.. He went to her room, knocked on her door, noticed the lights were off. He asked her what she needed and was told she needed a diaper change. He said he asked permission to check her diaper/brief, which permission he received. Upon seeing D.S. had soiled her brief, he left the room to get the supplies he needed. Mr. Sales then described what he did to clean her and that he followed proper peri-care hygiene procedures.
[98] Mr. Sales described D.S. needed extra cleaning given the amount and consistency of the soiling in the brief. In following procedure, Mr. Sales said he had to clean her front genital area first – wearing his gloves and using wet wipes. He said only one wipe per pass is used to prevent infection. Mr. Sales said he used 7 wipes on D.S. front area, and another 5 for the back area. D.S. asked him to make sure he did a thorough job and was cooperative with the process and Mr. Sales instructions.
[99] After D.S. was clean, she asked for the cleansing spray to be used. Mr. Sales said the spray helps with odour and gives an extra layer of clean. Mr. Sales noted he used the spray on D.S.. Mr. Sales then said he put lotion on her buttock, at D.S. request, and then put on her clean brief, made necessary adjustments, pulled her dressing gown down, covered her with her blanket, asked if she needed anything further, and left the room.
[100] Mr. Sales noted on an average cleaning of a soiled resident, he would have used fewer wipes, but for D.S. on the day in question, he had to use several more wipes to ensure D.S. was properly cleaned.
[101] When asked what his intentions were, and what he was thinking during the process with D.S., Mr. Sales said he did not intend anything, and he was not thinking about anything beyond the task at hand.
[102] Mr. Sales said he went about his duties and about 30 minutes later, he was called into the office and shortly thereafter he was terminated and escorted from the building.
[103] With respect to G.C., Mr. Sales agreed he bathed G.C. on October 20, 2024. He described the bathing procedure. It was his first time bathing G.C., and there was nothing unusual about it.
[104] Mr. Sales then said he bathed G.C. again on November 3, 2024, which was also the same day he helped her with her compression socks. On that day, Mr. Sales said, he helped G.C. with her socks earlier in the day and with her bath later in day before dinner.
[105] Mr. Sales said when a resident is in the tub, she is in a lifting chair that is partially open on the seat to allow cleaning of a resident’s bottom area. Mr. Sales confirmed G.C. was able to clean her front, while he helped with her hair, back and bottom area. He described the washcloths, the process for wiping with the cloth and the need to be gentle given the residents are elderly and easily hurt.
[106] Mr. Sales denied he rubbed G.C. vagina. He had no sexual intentions toward G.C., and he denied touching her breasts. Mr. Sales said he did not say or do anything inappropriate with G.C. during both baths and when he helped her with her compression socks.
[107] Mr. Sales was cross-examined, and nothing arose from the cross-examination that gave the court additional information or understanding of the incidents. Mr. Sales answered the crown’s questions and appeared unshaken.
Final Submissions
[108] Counsel for the crown ask me to convict Mr. Sales on both counts, while defense ask me to acquit Mr. Sales on the first prong of W.D., or in the alternative, on the second prong.
[109] The crown argued Mr. Sales contact with the women crossed the line between normal, acceptable care of both women, and that in the result, Mr. Sales actions are criminal in nature. Both women stated their subjective feelings and observations of the touching by Mr. Sales.
[110] Defense argued Mr. Sales actions were not of a sexual nature, and that he had no improper intent with either woman. The inconsistencies in the evidence of both complainants make it dangerous to convict on the counts before the court.
Analysis
[111] Ultimately, this is a “W.D.” case requiring me to apply the three-pronged test to determine the guilt of Mr. Sales. If I believe Mr. Sales, I must acquit him. Second, if I do not believe Mr. Sales, but I am left with a reasonable doubt as to his guilt, I must acquit him. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1SCR 742)
[112] Sexual assault is generally defined as an assault of a sexual nature that violates the sexual integrity of the victim. The offense of sexual assault is one of general intent and requires the elements of the guilty act and the guilty mind of the accused.
[113] Sexual assault has been defined in case law as well. R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293 set out a test to assist in the analysis. The court ought to consider several factors in the analysis. What body part was touched? What is the nature of the contact and the situation in which the touch occurred? What word or gestures were used? What was the accused’s intent? And any other circumstances present. All of which are to be considered through the eyes of a reasonable objective observer.
[114] What is also relevant is the victim’s mindset at the time of the assault, and whether the assault arose in the context of sexual circumstances. The inquiry by the court into the mindset of the victim and whether the victim believes the touching violated her sexual integrity is a subjective test. The other elements of the offense of sexual assault are evaluated on an objective standard.
[115] The guilty mind of the accused also must be proved by the crown, in that the accused intentionally touched the victim, and that he was aware or wilfully blind or reckless about the lack of consent to the touching. The crown does not have to prove the accused had a sexual intent or gratification in the touching.
[116] In the context of this case, the touching by Mr. Sales of the two women, arises in the course of his duties as a PSW. The crown must prove, beyond a reasonable doubt, Mr. Sales’ touching changed from the clinical, necessary and detached nature required of his work into something of a sexual nature that the women did not consent to which violated their sexual integrity.
[117] With respect to G.C., the only evidence the court had was her video statement to police. Because she passed away before the trial, she could not be questioned or cross-examined at trial. I note G.C. could not be questioned regarding the evidence of the accused indicating he had bathed her twice and not once as G.C. said in her statement. I find this to be a significant inconsistency that should have been tested.
[118] While the police try to elicit evidence from a witness or complainant, they are not expected to conduct the level and type of questioning we see lawyers conducting when they are questioning a witness. The police are required to gather evidence to support grounds for a charge or charges to be laid. The lawyers, at a trial, are required to attempt to get to the truth of the matter in order to assist the trier of fact in arriving at a just decision.
[119] To be clear, W.D. cases are not about credibility contests. The court must assess all the evidence to determine whether a case is proved beyond a reasonable doubt which is a high standard or burden to meet, which is why accused must be given the benefit of the reasonable doubt that may arise in any given case once a court evaluates all the evidence it has before it.
[120] While G.C. may have been a credible witness, I cannot rely on her evidence as presented given the frailties with the statement pointed out by defense counsel. G.C. could not be questioned about her identification of Mr. Sales, the number of baths he may have given her, whether she could have misconstrued his actions, clarification of her comments about news spreading around the home, and the fact she was not sure if a crime had been committed against her, any inconsistencies between her evidence and that of other witnesses – to name a few. She expressed doubt herself about the bath in question being a sexual assault. She certainly expressed concern that she did not like how she was bathed but was not sure it was a sexual assault. Therefore, the ultimate reliability of G.C.’s statement is in question, and I cannot it give it significant weight.
[121] Even if I am wrong about the statement of G.C., I accept the evidence of Mr. Sales and believe he did not have any sexual intent when he bathed G.C.. In other words, I find Mr. Sales did not sexually assault G.C.. The crown has failed to prove, beyond a reasonable doubt, the elements of the offense pertaining to GC. I acquit Mr. Sales of count 2 of the information.
[122] As for the evidence related to D.S., I have examined the evidence of the witnesses, including Mr. Sales. With D.S., the part of her body touched was her genital area and her bottom in the course of a regular diaper change and cleaning for hygienic purposes. D.S. consented to the touching in this context. D.S. said Mr. Sales said inappropriate things to her asking if she could feel him rubbing her genital area.
[123] I also note, if Mr. Sales did say anything about D.S. feeling anything, it could be related to checking to make sure she was not being hurt or that her sensation in that area may have been impacted by the recent removal of the catheter. I do not, objectively, find anything sexual in such comments, if they were made, given the circumstances.
[124] Other frailties with the crown’s case exist in the CCTV evidence gaps. To allay the concerns about who saw Mr. Sales escorted from the building on the day he was terminated, the crown ought to have produced the footage of that occurring. All the common areas in the home were monitored by CCTV. Leaving the court to speculate and rely on witness memory about who was present when Mr. Sales was escorted, rather than provide the video of that event which could have been more helpful in the question about tainting, influence or collusion.
[125] In addition, the CCTV footage from the second bath day Mr. Sales said occurred could have been easily corroborated or disproved with footage or resident records of the bath and who gave the bath. As indicated, the CCTV footage was an underutilized tool in the evidence in this case.
[126] Mr. Sales denied any sexual intent with respect to his performing the cleaning of D.S. for the purposes of her peri-care and infection control. I accept the evidence of Mr. Sales in this regard. As noted in R. v. Kruk, 2024 SCC 7 with respect to the use of common sense, and the tests set out in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 and Chase, an objective, reasonable observer standing in D.S. room that morning when she was being tended to by Mr. Sales, would not have seen anything of a sexual nature occurring.
[127] Further, even if Mr. Sales failed to properly follow the cleaning techniques he was trained to follow, I am not satisfied that failure, if any, amounts to a sexual assault.
[128] The cases provided by the crown, except the high courts’ decisions which are binding on this court, were helpful in the analysis, but I note the non-binding cases provided are distinguishable on their facts.
[129] Again, on the first prong of the W.D. test, I accept the evidence of Mr. Sales that he did not have any sexual intention toward D.S. I am not satisfied Mr. Sales actions rise to the level of a sexual assault and acquit him of the count of sexual assault as against D.S., which is count 1 on the information. Further, even if I disbelieve Mr. Sales, his evidence leaves me with a reasonable doubt which is prong 2 of the W.D. test.
[130] I thank counsel for their hard work on this matter, and for the thorough materials and submissions they provided.
Released: July 23, 2026
Signed: Justice E J Baxter