Court File and Parties

COURT FILE NO.: CR-19-10000069-0000 DATE: 20200806 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ENZO DARIO DE JESUS CARRASCO Defendant

Counsel: Rick Nathanson and Pamela Santora, for the Crown Hussein Aly, for the Defendant

HEARD: July 30, 31, and August 4, 2020

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

REASONS FOR JUDGMENT

R.F. GOLDSTEIN, J.:

1In November 2016 V.B. was working at the College Street Bar as a hostess. Enzo DeJesus was the bar manager. In December 2016 Mr. DeJesus and the bar’s owner, Gavin Macmillan, were charged with several counts relating to a sexual assault. The complainant in that case was V.B.’s friend. V.B. was a witness in that case, although she did not witness the actual sexual assault.

2In June 2018 V.B. went to a police station to give a further statement in her friend’s case. A police officer showed her a photograph. The photograph had been extracted from Mr. DeJesus’s phone. The photograph depicted V.B. in the basement office of the College Street Bar. She was partially clothed. Mr. DeJesus was touching her.

3V.B. testified that she was shocked when she saw the picture. She told the police that Mr. DeJesus had sexually assaulted her. She did not know that someone had taken a photograph of the encounter. She testified in this case that did not know she was being videotaped or that there was a camera in the basement. Mr. DeJesus had sent the photograph to someone else. V.B. testified that she did not know anything about that, either.

4Mr. DeJesus now stands charged with one count of sexual assault, one count of voyeurism, and one count of transmitting an intimate image.

BACKGROUND

5V.B. began working at the College Street Bar as a hostess in November 2016. The College Street Bar consisted of a service area on the ground floor and a basement floor. In the basement there was a storage room, restroom, and an office. There were two staircases leading to the basement. V.B. worked there for about a month and a half in total. Mr. DeJesus was the manager and her supervisor. Gavin Macmillan was the owner of the bar, and therefore V.B.’s ultimate boss. Mr. Macmillan was not in very often. He tended to come in only on busy nights.

6It is an agreed fact that the College Street Bar had 8 surveillance cameras that recorded to a digital video recorder (also known as a DVR) in the basement office. The DVR could be accessed and viewed on a monitor for up to two weeks, after which it would be automatically deleted. The video could be saved manually. Mr. DeJesus and Mr. Macmillan had access to the DVR.

7The camera feeds were displayed on computer monitors in the basement office. V.B. testified that she was aware of the cameras generally, but she was not aware of the camera in the basement office. She testified that she found it strange that there was no camera in the office – that was where they kept the cash box. She would have thought it would have been important for security purposes.

8In fact, there was a surveillance camera in the basement office. The basement office was basically a long rectangular room. The long walls ran north/south. The door into the office was on the west wall. The door was closer to the north than to the south. The walls were irregular. Just below (or to the south) of the office door the wall jutted in. The southern part of the office was narrower than the northern part. The surveillance camera was in a northern corner of the room. It covered most of the office, including the door, but there was a “blind spot” in the south-east corner that the surveillance camera could not fully cover – at least not without being moved.

9V.B. testified that in June 2018 she went to a police station to provide a statement. The statement was in relation to a criminal case involving her friend. Mr. DeJesus and Mr. Macmillan had been charged with sexual assault. V.B.’s friend was the complainant. A police officer showed V.B. a photograph. The photograph (Ex 1A in these proceedings) depicted V.B. and Mr. DeJesus standing in the basement office in the narrower southern part. They faced the east wall. The photograph was taken by someone standing in the doorway. V.B. had one hand against the east wall. Her pants were down. Mr. DeJesus was touching her back.

10It is an agreed fact that Mr. DeJesus’s cell phone was seized from him in January 2017. The contents of the phone were extracted. It is agreed that the contents are authentic and belonged to Mr. DeJesus. On November 25, 2016, Mr. DeJesus sent Ex 1A and another photograph to a person named Hunter.

ISSUES AND ANALYSIS

11This case turns on the credibility and reliability of the witnesses. A criminal case is not a credibility contest. I do not simply choose which version of events to believe. Rather, I must determine whether I believe Mr. DeJesus or whether his evidence leaves me with a reasonable doubt. Even if I am not left in a state of reasonable doubt, I must still determine whether the Crown has proven each element of each of the three offences: R. v. W.(D.), [1991] 1 S.C.R. 742. If I am unsure who to believe, then I must acquit as I will, therefore, be left in a state of reasonable doubt. In R. v. Thomas, 2012 ONSC 6653 at paras. 22-24, Code J. found that the W.D. analysis did not literally involve a three-step approach. Rather, he described three possible findings for a trier of fact to make: complete acceptance of the defence evidence; complete acceptance of the Crown evidence; or uncertainty as to which account to believe. Of course, I can believe some, none or all of a witness’s evidence. I can accept a witness’s evidence on one point and reject his or her evidence on another point. At the end of the day, my duty is to determine whether I am left in a state of reasonable doubt based on the whole of the evidence: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 21. There are, therefore, three issues in this case:

• Do I accept the defence evidence?
• Do I accept the Crown’s evidence on count 1?
• Do I accept the Crown’s evidence on count 2?

12As will also become obvious, I am not left with any uncertainty about which evidence to accept. As will also become obvious, I do not need to deal with the Crown’s evidence on count 3 because I am left with a reasonable doubt, as I will elaborate.

(a) Do I accept the defence evidence?

13The defence position is that I should believe Mr. DeJesus’s evidence that V.B. asked for a massage. I should therefore believe him that the touching was not for a sexual purpose. The photograph (Ex 1A) indicates that Mr. DeJesus was touching V.B. in the way that a person would touch another person if he were giving a massage. I should also believe him that everyone, including V.B., was aware that there were cameras everywhere. The camera in the basement office was obvious. V.B. recalled many other things in the basement office. I should also believe Mr. DeJesus that V.B. consented to permitting him to send Ex 1A to his friend, but in any event, he sent it by mistake and therefore did not have the necessary intention to commit the offence of transmitting an intimate image. I should therefore acquit him of all charges.

14Respectfully, I do not agree. I do not find Mr. DeJesus to be a credible witness on this point and his evidence does not leave me with a reasonable doubt. Indeed, Mr. DeJesus’s evidence is nothing more than a pack of lies.

15Mr. DeJesus testified that V.B. was in the basement office on the evening of November 24, 2016. She mentioned she was tense and asked for a massage. Mr. DeJesus agreed. He said that he had some family experience with the profession of therapeutic masseuse. He often gave massages to his former girlfriend who used to work at the bar. V.B. said she had a knot in her back. He asked her to stand against the wall as counter-pressure. He then told V.B. that the muscle with the knot ended in her glutes. He asked if she wanted him to massage it and she agreed. He touched her over her pants, pressing with his thumb, but she did not feel it. She then unbuckled her pants and pulled them down so that he could massage her glutes properly. He then went back to massaging her upper back. He testified that he never touched her anus or vagina. The massage ended when they heard a noise and V.B. went back to work.

16Ex 1A, on its face, is not necessarily inconsistent with Mr. DeJesus’s explanation that he was giving V.B. a massage. (V.B.’s face seems to express discomfort. The resolution of the photograph, however, is simply not clear enough for me to make a finding.) He is, however, touching her back and V.B.’s top is on. Her pants are pulled down.

17I do not accept Mr. DeJesus’s explanation, however, because it is contradicted by text messages between him and Mr. Macmillan commencing at 2:58:47 pm on November 25, 2016:

Message: 2515 Time: 2:58:47 pm From: DeJesus To: Macmillan Message: “Is it clear, could you see her well or not?”

Message: 2516 Time: 3:00:44 pm From: Macmillan To: DeJesus Message: “Not really. Henry watched for at least 5 minutes. Lol”

Message: 2517 Time: 3:01:16 pm From: DeJesus To: Macmillan Message: “Hahaha that bitch”

Message: 2518 Time: 3:02:28 pm From: Macmillan To: DeJesus Message: “Actually. Way more 10-12 mins”

Message: 2519 Time: 3:08:37 pm From: DeJesus To: Macmillan Message: “He’s showing he even to picks”

Message: 2520 Time: 3:15:26 pm From: Macmillan To: DeJesus Message: “I don’t see her naked at all. I call bullshit. Show me her tits. I don’t want to see her ass. Lame.”

Message: 2521 Time: 3:15:50 pm From: Macmillan To: DeJesus Message: “Henry is a peeping Tom.”

Message: 2522 Time: 3:15:50 pm From: DeJesus To: Macmillan Message: “It’s all in the video”

Message: 2523 Time: 3:16:04 pm From: Macmillan To: DeJesus Message: “Can’t see shit”

Message: 2524 Time: 3:16:12 pm From: DeJesus To: Macmillan Message: “Fuck”

18Mr. Macmillan’s statements are not admissible against Mr. DeJesus unless adopted: R. v. Robinson, 2014 ONCA 63, at para. 48 and following. In the context of the text messages, it is clear that Mr. DeJesus expressed and adopted the general sexual content of the conversation. That sexual content concerned V.B. Mr. DeJesus also agreed in cross-examination that he and Mr. Macmillan filmed sexual encounters in the basement office of the College Street Bar. The Crown characterized it as “kiss and show” and Mr. DeJesus agreed. Mr. DeJesus’s query – “could you see her well or not?” – means he knew that Mr. Macmillan watched or would be watching the recording. It is obvious that Mr. DeJesus considered the encounter to be sexual – either for his own gratification, or for Mr. Macmillan’s gratification. He was not credible when he testified that the encounter was just a consensual massage.

19In the next text in the series of messages, Mr. DeJesus’ went on to describe V.B.’s breasts in some detail, and to brag that he got her pants down – hardly indicative of a non-sexual massage:

Message: 2525 Time: 3:16:45 pm From: DeJesus To: Macmillan Message: “She has semi big aureolas with small nipples”

Message: 2526 Time: 3:17:09 pm From: DeJesus To: Macmillan Message: “We need another cammera”

Message: 2527 Time: 3:17:15 pm From: Macmillan To: DeJesus Message: “I’ll be the judge of that”

Message: 2528 Time: 3:17:26 pm From: DeJesus To: Macmillan Message: “Agreed.”

Message: 2529 Time: 3:18:20 pm From: DeJesus To: Macmillan Message: “So youthink i can get her pants down but I cantsee her tits.”

20Mr. DeJesus defaulted to stating that V.B. knew there was a camera in the basement during his cross-examination. For the sexual assault count, it matters not whether V.B. knew she was being filmed. What matters is whether she consented to the sexual touching. When Mr. DeJesus implies that she consented because she was being filmed, that mischaracterizes the legal requirement of affirmative consent. One form of consent cannot be bootstrapped into a general consent. In any event, as I will relate, I find that V.B. did not know she was being filmed or photographed and I accept her evidence.

21These texts also undermine Mr. DeJesus’s credibility on two specific points. First, Mr. DeJesus testified that V.B. unbuckled her own pants and pulled them down. Message 2529, where Mr. DeJesus brags that he got V.B.’s pants down, obviously contradicts his testimony. Second, it means that his denial that he touched V.B. sexually is also not credible.

22Mr. Macmillan and Mr. DeJesus then have a further exchange of text messages. They again discuss V.B.’s breasts. The exchange makes the purpose of these basement encounters perfectly clear – as well as Mr. Macmillan’s demand that Mr. DeJesus try to film V.B. again:

Message: 2532 Time: 3:30:02 pm From: Macmillan To: DeJesus Message: “But for the record I think they are floppy tits.”

Message: 2533 Time: 3:30:37 pm From: DeJesus To: Macmillan Message: “Oh but there is and yes they are but i would still fuckhe hee”

Message: 2534 Time: 3:30:45 pm From: Macmillan To: DeJesus Message: “These ones are perfect. They don’t move.”

Message: 2535 Time: 3:30:59 pm From: Macmillan To: DeJesus Message: “Unless I slap them.”

Message: 2536 Time: 3:33:52 pm From: Macmillan To: DeJesus Message: “I want to see her tits tonight.”

Message: 2537 Time: 3:34:03 pm From: Macmillan To: DeJesus Message: “Or you and henry are fired”

Message: 2542 Time: 4:30:35 pm From: DeJesus To: Macmillan Message: “So ill make it happen and henry takes the pics”

Message: 2543 Time: 4:31:00 pm From: Macmillan To: DeJesus Message: “Obv”

23In my view, the inference to be drawn from Message 2533 where Mr. DeJesus indicates “Oh but there is” is that there is, in fact, evidence of the encounter between him and V.B. It seems clear to me that the evidence is the photograph taken by Henry. It is further confirmation of the sexual nature of the encounter.

24I now turn to Mr. DeJesus’s evidence regarding his encounter with his roommate (and fellow employee) Henry early in the morning of November 25, 2016.

25Mr. DeJesus testified that on the evening of November 24, 2016 he left the bar with V.B. at about 11 pm, after their encounter in the basement. The bar was dead. They left other employees, including Henry, to clean up and close the bar. Mr. DeJesus and V.B. took a cab to his home. He lived in a basement apartment. His bedroom was at the end of a long hallway. His roommate was Henry, the fellow employee from the bar. At around 2 am Henry came home. Mr. DeJesus was with V.B. in his bedroom. He left the bedroom. Henry said, “look at this” and showed him the picture on his phone. Mr. DeJesus testified that he was not aware that Henry had taken the photograph. Mr. DeJesus then showed the picture to V.B. She laughed and said Henry was a peeping tom. Mr. DeJesus then asked if he could share it with his friends as if she were his new girlfriend. She said that she didn’t care.

26Mr. DeJesus’s story that Henry showed the photograph to him at 2 am or so is contradicted by text messages. At 3:56 am on November 25 – early in the morning after the encounter in the basement – Henry texted Mr. DeJesus in Spanish. He indicated that he saw Mr. DeJesus with the new girl. Mr. DeJesus responded at 4:00 am by simply texting “hahahahaha”. In my view, this was an admission by adoption. Mr. DeJesus did not deny the assertion and did not offer an alternative: R. v. Robinson, supra. Mr. DeJesus agreed that the “new girl” was V.B.

27Why would Henry text Mr. DeJesus at 4 am to say he seen Mr. DeJesus with V.B. if he had come home at 2 am and showed Mr. DeJesus the photograph? I find that Mr. DeJesus did not show V.B. the photograph at 2 am, she did not laugh, and she did not give permission share it.

28I turn to Mr. DeJesus’s evidence regarding V.B.’s knowledge of the video-recording.

29Mr. DeJesus testified that everyone working at the College Street Bar was aware of the camera system. The employees were all told. Management was concerned about expensive alcohol at the bar. V.B. was also aware of the camera in the basement office because, like the other employees, she was told about it. Moreover, in her own evidence she testified that she saw that each of the video cameras had a feed into the monitors.

30Mr. DeJesus’s evidence does not leave me with a reasonable doubt on this point. When he was pressed in cross-examination Mr. DeJesus agreed that he did not specifically tell V.B. that she was being filmed– he kept stating simply that she knew about the cameras. He also admitted that he did not tell V.B. that Mr. Macmillan would later watch the recording.

31In contrast to all his other evidence, I am left in a state of reasonable doubt about whether Mr. DeJesus sent Ex 1A to Hunter by mistake and therefore without criminal intent. Immediately after sending it, he texted that he had sent the wrong photograph. I do not accept the Crown’s position that he was simply joking. I am aware that his story about obtaining consent from V.B. (which was fabricated) is at odds with his story about making a mistake. That said, if Mr. DeJesus had permission from V.B. to share the photograph, then why would he have bothered to tell Hunter that it was a mistake to send it? Ironically, the lie about obtaining permission was one lie that Mr. DeJesus did not need to tell this court. If I had to depend on Mr. DeJesus’s evidence alone I would most certainly convict him on the count of sharing an intimate image. I find that he did not intend to send the photograph. I base that finding solely on the text message itself. It follows that I find Mr. DeJesus not guilty on Count 3.

32For the record, however, and to be perfectly clear, I believe V.B.’s evidence that she did not see the photograph and that Mr. DeJesus did not obtain her permission. I carefully observed V.B. on the witness stand. I observed her demeanour and her manner of speaking. It does not ring true that she would have laughed when she saw the photograph and then given permission to share it. She may have been comfortable with fashion photographs of herself as part of her modelling portfolio and her personal social media feed (which she controlled). Nothing about her testimony indicates that she was comfortable with sharing an intimate photograph taken in the dirty basement of a bar (as she likely would have seen it). Nothing about her demeanour suggested that she would react in the light-hearted manner described by Mr. DeJesus – indeed, her demeanour suggested the opposite. I recognize that this observation includes a certain amount of subjectivity, but Mr. DeJesus’s evidence of her reaction is at odds with the totality of the evidence. To repeat, it is based on the text to Hunter alone that I find Mr. DeJesus not guilty on Count 3.

33Simply because I do not accept Mr. DeJesus’s evidence does not mean that I must convict, of course. The Crown is still required to prove the elements of each of the remaining two offences beyond a reasonable doubt. I turn now to those counts.

(b) Do I accept the Crown’s evidence on count 1?

34The defence position is that I cannot convict Mr. DeJesus of sexual assault because V.B.’s evidence is not credible or reliable. She fabricated the assault. If Mr. DeJesus had truly assaulted her, she would have done more or taken greater steps to protect her friend, who was later sexually assaulted by Mr. DeJesus and Mr. Macmillan together. A mark of her lack of credibility is that story kept changing and simply does not hang together.

35It is also important to the defence theory that on the night of the encounter in the basement office, V.B. went home with Mr. DeJesus after they both quit work for the night. The defence argument is that if V.B. had truly been sexually assaulted by Mr. DeJesus in the basement office on the evening of November 24, she would not have gone back to his apartment later that night. The defence argues that she claimed she was drugged because she otherwise had to explain away why she went to his apartment. She feigned being drugged. She is, therefore, not credible when she says that Mr. DeJesus sexually assaulted her.

36I do not agree. I found V.B. to be a credible witness. I believe her evidence. Although there were contradictions in her evidence, I find that they were not especially material and did not affect her overall credibility. Perhaps more importantly, on critical points her evidence is consistent with the text messages between Mr. DeJesus and Mr. Macmillan – text messages that she could not have been aware of.

37The elements of the offence of sexual assault (as set out in the Canadian Judicial Council’s model jury instructions) are these:

• First, that Mr. DeJesus touched V.B. directly or indirectly;
• Second, that the touching by Mr. DeJesus was intentional;
• Third, that the touching by Mr. DeJesus took place in circumstances of a sexual nature;
• Fourth, that V.B. did not consent to the sexual activity in question; and,
• Fifth, that Mr. DeJesus knew that V.B. did not consent to the sexual activity in question.

38Whether the touching was sexual in nature, and whether V.B. consented are the only real issues on this count. It is obvious that if V.B. did not consent, Mr. DeJesus knew it.

39V.B. testified that Mr. DeJesus often pulled her down into the basement office to chat. He kept saying he wanted to get to know V.B. She usually said to him something along the lines of: “don’t I need to be upstairs doing my job?” She described Mr. DeJesus as a very “touchy” person. He would touch her legs or shoulders. She said it made her uncomfortable. She would indicate that she had to get back to work but that Mr. DeJesus would tell her that the bar wasn’t busy, and the bartenders could handle the patrons. As she put it, one way or the other he would not let her leave. She testified that she felt some pressure not to quit because winter was approaching. Jobs in the hospitality industry are hard to come by in the winter.

40V.B. testified that Mr. DeJesus summoned her to the basement office one evening. Based on the text messages and Ex 1A, I find that it was November 24, 2016. Mr. DeJesus told her that she was tense and needed to relax more. He started to massage her. He put his hand on her knee and worked his way up her leg. She told him to stop. He put his hands on her shoulders, picked her up and pushed her against the wall. She described his grip as a “vice grip” on her shoulders.

41V.B. testified that she froze. She remembered that he manipulated her to put her hands on the wall. He also pushed her pants down to around her knees. She protested and told him to stop but he did not. Instead, he touched her inside both front and behind in her crotch area. He also touched her chest. She recalled that he told her to “stay put”. She could not remember if he touched her chest over or under her clothing. V.B. also testified that her underwear came off, and that Mr. DeJesus removed it. She did not think her shirt or bra was removed, but she was not 100% clear. The encounter lasted about ten minutes, but she could not really remember. At the end Mr. DeJesus flipped her around so that she was facing him.

42Mr. Aly argued that if the assault had really happened as she described it, she would not have left her friend – the friend who was raped by Mr. DeJesus and Mr. Macmillan – alone with Mr. DeJesus without disclosing that assault.

43I disagree. V.B.’s explanation on that point is entirely reasonable. V.B. testified that she was embarrassed and ashamed. She did not want to disclose the assault to her friend – which was certainly consistent with the fact that she did not bring the assault to the attention of the police. She did warn her friend that Mr. DeJesus was – in her words – a slimeball. She also felt that Mr. Macmillan’s presence was sufficient. She assumed that he was a responsible person.

44It was a judgment call for V.B. whether to disclose the assault or simply give a more general warning. I don’t think anything can be drawn from her decision not to disclose the assault to her friend. Moreover, I also think it is reasonable that she thought nothing would go wrong if Mr. Macmillan was present. It is understandable that complainants do not wish to report a sexual assault and thus begin a long, difficult, potentially embarrassing and occasionally brutal encounter with the criminal justice system. The law is well settled was summed up by Major J. in R. v. D.D., 2000 SCC 43 at para. 43:

A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

45V.B. also testified that she was upset with herself for not physically resisting Mr. DeJesus more, or not speaking out more forcefully when he assaulted her. She also blamed herself for not quitting her job earlier. That is also consistent with the emotions expressed by many complainants, but to be very clear, V.B. was under no obligation to fight back or speak out more forcefully.

46I also reject the submission that because both Mr. DeJesus and Mr. Macmillan had offered her drugs at some point, she would not have trusted them. It does not follow that because Mr. Macmillan had offered her drugs, he could not be trusted not to rape her friend – or to prevent Mr. DeJesus from raping her friend. V.B. testified that drugs were common in the hospitality industry. She testified that she knew many good people who used drugs.

47I also find that the text messages between Mr. DeJesus and Mr. Macmillan are largely consistent with V.B.’s testimony in important respects. I have already analyzed the messages and need not to so again. At the end of the day, Mr. Macmillan wasn’t suggesting that he wanted to see Mr. DeJesus’s technique for massaging gluteal muscles. No great analysis is required to show that the encounter was ultimately for the purpose of sexual gratification.

48Mr. Aly pointed out that V.B. testified for the first time at this trial that Mr. DeJesus had digitally penetrated her. She did not mention penetration in her police statements and did not mention it at the preliminary inquiry. This selective disclosure undermined her credibility.

49I must disagree. Whether one characterizes the disclosure of the penetration as selective or late, I do not think much turns on it considering the totality of the evidence. There is no reason to think that selective disclosure (or, to repeat, delayed disclosure) automatically impacts the credibility or reliability of a witness: D.D., supra; R. v. D.P., 2017 ONCA 263 at paras. 29-31. V.B. could be wrong or mistaken about the penetration. In light of all the other evidence confirming the basic outline of her account (primarily the text messages) I don’t think she can be said to be incredible. In my view, it is not a significant contradiction or problem in her evidence such that it undermines the basics of her testimony.

50I turn to the defence submission that if V.B. had really been sexually assaulted in the basement office, she would not have gone home with Mr. DeJesus later that evening. I reject that position. As well, it comes regrettably close to relying on a “rape myth”, although I accept Mr. Aly’s submission that that was not his intention.

51V.B. testified that there was a night that she left College Street Bar in a taxi with Mr. DeJesus. She could not say if it was the night of the sexual assault in the basement, but she could not rule it out. Mr. DeJesus had said he would arrange a lift for her to get home. She was confused, because Mr. DeJesus got into the taxi with her. As well, the taxi did not drop her at her home. Instead, they went to Mr. DeJesus’s home. She felt woozy and thought that perhaps she had been given an “external substance.” She did not ordinarily drink at work. She found it unprofessional. She also did not take drugs. As well, she would not have had a drink because she had to work at another job in the morning. She testified that she had virtually no memory of what had happened at Mr. DeJesus’s home.

52Because I find that there is virtually nothing that Mr. DeJesus said that was truthful, I am reluctant to accept his evidence that V.B. went home with him on the night of November 24-25. The Facebook messages and the text message to Hunter, however, suggest that is when it happened. At 4:07 am on November 25, V.B. added Mr. DeJesus on Facebook Messenger. At 6:25 pm that day, V.B. texted that she left her other job, and was on her way – presumably to College Street Bar to take up her hostess duties. Mr. DeJesus replied:

Ok im here, was it rough to wake up?

53There are three inferences that I draw from the Facebook Messenger exchange: first, that V.B. did indeed have another job to go to in the morning and was therefore unlikely to be willingly drinking the night before; second, that Mr. DeJesus knew that V.B. had been intoxicated in some way the night before; and third, that they had spent time together the night before.

54I accept V.B.’s testimony that she was woozy and could not remember exactly what had happened. In his Facebook message Mr. DeJesus certainly confirmed that he expected her not to feel well that morning. The implication of her testimony is that Mr. DeJesus gave her drug, although she was very careful not to directly make that allegation. I do not have enough evidence to find that he did give her a drug. I do have enough evidence to say that it is certainly possible. I also have enough evidence to say that V.B. was likely intoxicated or incapacitated enough such that it affected her memory. I reject the submission that V.B. would not have gone home with Mr. DeJesus if he had truly sexually assaulted her. I find that the state of her intoxication – or incapacity – was such that she was not able to agree or disagree to go to Mr. DeJesus’s apartment.

55I therefore accept V.B.’s evidence regarding the issue of consent and whether the touching was for a sexual purpose. Based on that evidence, as well as the text messages, I am satisfied beyond a reasonable doubt on count 1 and there will be a conviction.

(c) Do I accept the Crown’s evidence on Count 2?

56The elements of the offence under s. 161(1) were set out in R. v. Rudiger, 2011 BCSC 1397 at para. 75:

The offence is committed where a person: (i) surreptitiously; (ii) observes or makes a recording; (iii) of a person who is in circumstances that gives rise to a reasonable expectation of privacy; and, (iv) the recording is done for sexual purpose.

57See also: R. v. Jarvis, 2019 SCC 10 at para. 21.

58The defence position is that V.B. had no expectation of privacy in the basement office. V.B., like all the employees, was well aware of the cameras. She is lying when she says she did not know there was a camera in the basement office. There was nothing surreptitious about the recording because the camera was out in the open.

59I reject that submission. I find that V.B. did not have specific knowledge of a camera in the basement; frankly, even if she did, she still had a reasonable expectation of privacy. She had a reasonable expectation that she would not be filmed semi-naked for the purposes of the sexual gratification of either Mr. Macmillan or Mr. DeJesus – or both.

60V.B. testified that she was aware of a camera system. She knew about the monitors with the camera feeds in the basement office. She testified that she did not specifically know about a camera in the basement. She found it odd, because she would have expected a basement camera for security purposes.

61The camera in the basement office was not hidden, although I accept V.B.’s evidence that she was unaware of it. I also accept her evidence that she was told about the cameras in the bar, but not told about the camera in the basement office. I accept her evidence on for four reasons. First, it is clear from the text messages between Mr. DeJesus and Mr. Macmillan that the basement office camera was used to surreptitiously film women. That may not have been the only purpose of the surveillance camera – it is possible the camera was used for office security – but that was certainly one purpose. Second, there may not have been an effort to hide the camera, but it was also not in an obvious position. As one walked into the basement office, the main desk was to the right, or south end of the room. The surveillance camera was to the left, or north end of the room. It was in a corner. It afforded a view of the main desk at the south end of the room. Third, the camera itself seems to have been of a different kind then at least some of the other cameras in the bar (see Ex 2A, Tab 3, photos 14, 29, and 33). Fourth, V.B. could undoubtedly see parts of the bar from the various feeds. There is no evidence, however, that her knowledge extended beyond that. She was not pressed on the point of whether she had seen the specific feed from the basement. There is no evidence that she watched the feeds, as opposed to glancing casually at the monitors.

62Even if V.B. did know about the cameras, she still had a reasonable expectation of privacy. The Supreme Court recently canvassed the offence of voyeurism set out in s. 162(1) in R. v. Jarvis, supra. Jarvis was a high school teacher. He had a pen that also had a tiny camera. He used the camera to record female students at the school going about their daily activities. He concentrated on students wearing low-cut or tight-fitting tops. The students did not know that he was recording them.

63As Wagner J., for the Supreme Court put it, “the only question to be asked in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation of privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue.” See: Jarvis, at para. 29, where Wagner J. set out a non-exhaustive list series of factors a judge might consider:

(1) The location the person was in when she was observed or recorded. (2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. (3) Awareness of or consent to potential observation or recording. (4) The manner in which the observation or recording was done. (5) The subject matter or content of the observation or recording. (6) Any rules, regulations or policies that governed the observation or recording in question. (7) The relationship between the person who was observed or recorded and the person who did the observing or recording. (8) The purpose for which the observation or recording was done. (9) The personal attributes of the person who was observed or recorded.

64As Jarvis makes clear, context matters. The third, fourth, fifth factors and eighth factors militate in favour of a reasonable expectation of privacy by V.B. I this case. I think it is important that V.B. had no idea that Mr. DeJesus and Mr. Macmillan were filming in a sexual context. If an expectation of privacy means anything, it means (as Wagner J. points out) having control over one’s own informational privacy.

65The purpose of s. 162(1) is to protect people – especially vulnerable people – from abuse and sexual exploitation: Jarvis at paras. 50-52. The filming of V.B., an employee summoned to the basement office by her direct boss, is exactly the type of exploitive behaviour that Parliament intended to criminalize. Looked at another way, if Mr. DeJesus was so confident that V.B. would not have objected to being filmed for the purpose of sexual gratification, why would he not have simply asked her whether it was okay? The answer is obvious – because he knew she would not have agreed.

66Both the majority and the concurring minority in Jarvis found that the female students had a reasonable expectation of privacy. It was not reasonable to expect that a teacher with a secret camera would film them, in a school, concentrating on their breasts. In a similar vein it is reasonable that V.B. had an expectation that her direct boss would not grope her in a basement office so that her ultimate boss could watch.

67Accordingly, I find that V.B. had a reasonable expectation of privacy. I also find that the recording was surreptitious, and that it was done for a sexual purpose. There will be a conviction on count 2.

DISPOSITION

68I find Mr. DeJesus guilty on counts 1 and 2. I find him not guilty on count 3.