Court of Appeal for Ontario

Date: 20241126 Docket: COA-23-CR-0729

Before: Lauwers, George and Copeland JJ.A.

Between: His Majesty the King Respondent

And: V. K. Appellant

Counsel: Ingrid Grant and Jeff Marshman, for the appellant Molly Flanagan, for the respondent

Heard: November 6, 2024

On appeal from the convictions entered by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury, on December 8, 2022.

Reasons for Decision

[1] The appellant, who owned and was the chef in a restaurant where the three complainants – C.-M.G, A.G. and M.D. – worked as servers, was found guilty by a jury on three counts of sexual assault. All three complainants testified that the assaults occurred in the restaurant.

[2] The appellant appeals his convictions. He argues that 1) the trial judge erred in his charge to the jury by improperly expressing opinions on the evidence, by overemphasizing the Crown's theory of the case while discounting the defence theory, and by instructing the jury on vitiation of consent through abuse of authority; and 2) the verdict on count 3, the sexual assault of M.D., was unreasonable.

[3] After oral submissions, we advised counsel that the appeal was dismissed with reasons to follow. These are our reasons.

Background Facts

[4] The complainant C.-M.G. was between the ages of 20 and 21 when she worked in the appellant’s restaurant. She testified that initially she had a great relationship with the appellant, and described him as a father figure. Their relationship took a turn, however, after she had been working at the restaurant for around seven or eight months. She testified that the appellant began to give her “bear hugs” by grabbing her from behind and carrying her into his office, where he would get on top of her, hold her hands down, and rub his body over hers. This happened three to five times. He would suck on her nipples and on one occasion attempted digital penetration. The complainant said that she would cry, tell him to stop, and attempt to resist by kicking at him.

[5] The complainant A.G., who was 23 years old at the relevant time, testified that one afternoon while she was washing dishes, the appellant asked if her back hurt and proceeded to massage it. She told him that this was unnecessary but he continued. During the massage the appellant forced his hands under A.G.’s shirt, unhooked her bra, and moved his hands towards the side of her breasts. The appellant stopped when a delivery man appeared at the door of the restaurant. He told A.G. not to tell his wife. A.G. was later involved in a labour dispute with the appellant and at one point filed a civil claim, which settled for a modest amount. While A.G. never spoke to C.-M.G. about what had happened to her, she did advise M.D.

[6] The complainant M.D. was between the ages of 44 and 57 when she worked for the appellant. She testified that the appellant would regularly rub her shoulders and upper back. M.D. testified that she felt terrible when it happened and that she would tell the appellant to stop. In cross-examination, M.D. conceded that she would not characterize the touching as sexual. M.D. was a claimant in the same labour and civil disputes as A.G.

Similar Fact Evidence

[7] The Crown brought a cross-count similar fact application regarding all three counts. On consent, the trial judge allowed the application, noting that 1) the alleged sexual assaults all took place in the same restaurant owned and operated by the appellant, 2) the complainants were all female servers at this restaurant, 3) the appellant created the schedule that led to him being alone at the restaurant with the complainants, and 4) the sexual assaults all began with the intentional application of force that could be characterized or defended as innocuous and innocent, but which progressed to more persistent, aggressive and invasive touching. It is notable that the appellant does not challenge the trial judge’s similar fact evidence ruling.

[8] The trial judge held that the similar fact evidence was capable of supporting an inference that the appellant had a “situation-specific propensity to commit a sexual assault in relation to the female employees working under him” (the actus reus), and that it was capable of establishing both “intent, by raising an inference that arguably innocuous touching actually was carried out for a sexual purpose, and knowledge, by raising an inference that the accused knew his touching would be unwanted but also tolerated because of the power imbalance dynamic” (the mens rea).

Audio Recordings

[9] C.-M.G.’s mother and stepfather were friends with the appellant and his wife. After learning of C.-M.G.’s allegations, the two went to the appellant’s home to confront him. They recorded the exchange. Five portions of the recording were entered as an exhibit at trial. There was considerable dispute over the meaning of what can be heard in the recording. What we do know is that C.-M.G.’s stepfather and mother told the appellant and his wife that C.-M.G. said that the appellant had sexually assaulted her, but that she had not, at least at that point, gone to the police because “she love[d] [him] so much”. The recording also clearly captures the appellant saying that “she [C.-M.G.] was always all over us” and that “she was jumping on us”, “joking” and saying, “fuck me”. The appellant appears to have conceded that he would “play” with C.-M.G., but claimed that she did that with “everyone”.

Analysis

The jury charge was fair and balanced

[10] The appellant argues that when describing the relevance of the audio recordings to the issue of whether the assaults occurred, the trial judge made only one reference to the possibility that the contact between the appellant and C.-M.G. might have been innocent, and numerous references to the Crown theory that the recorded statements constituted admissions by the appellant. He argues further that the trial judge overemphasized the concept of consent in his instructions on the recordings, to the detriment of the defence theory, which was that the complainants had fabricated their allegations and the incidents had not taken place at all. The appellant’s position is that these deficiencies rendered the jury charge unbalanced and unfair.

[11] Parties are entitled to a properly, not perfectly, instructed jury. On review, appellate courts are to take a functional approach to assessing jury instructions. The overriding question is whether the jury was adequately equipped to decide the case according to the law and the evidence: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at paras. 35-36.

[12] Trial judges are permitted to comment on, and even express opinions about, the evidence. However, if they do so, they must make it clear that the jury is free to disregard their view. A trial judge will exceed what is permissible when they 1) express an opinion that is far stronger than the facts warrant, 2) express an opinion so strongly that the jury is likely to be overawed, or 3) express an opinion that deprives an accused of a fair presentation of the evidence: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 108-10; R. v. Lawes (2006), 80 O.R. (3d) 192 (C.A.), at para. 22.

[13] In our view, the trial judge’s jury instructions were, on the whole, fair and balanced. While he did express an opinion on the quality of the evidence, he first explained to the jury that they “may have an entirely different view”. He made it clear to the jury that it was ultimately up to them to make findings of fact. The trial judge said nothing that could have “overawed” the jury, effectively compelling them to accept his interpretation of the recordings.

[14] Further, the trial judge set out fully both the Crown and defence interpretations of the audio recordings, making it clear that it was the jury’s job to decide what was said during the conversation and what it meant. He instructed the jury to consider the possibility of fabrication – the defence theory – when deciding whether the Crown had proven that the assaults occurred; if they moved on to analyze consent, then it would mean they had considered and rejected the defence theory.

[15] The appellant argues further that the trial judge erred by instructing the jury that consent could be vitiated through abuse of authority. This instruction, in the appellant’s submission, was both unnecessary (because none of the complainants claimed to have consented), and prejudicial (because the sparse instruction implied that the appellant’s position of authority was dispositive on the issue of consent). We reject this argument.

[16] The trial judge only once referred to the vitiation of consent. He said that “[c]onsent requires knowledge on the part of the relevant complainant of what is going to happen and a decision by that complainant, without the influence of force, threats, fear, fraud, or abusive authority, to let it occur” and that “in this case, [the appellant] had authority over each of the complainants as her or their employer”.

[17] In the circumstances of this case, even though the appellant did not argue that the complainants had consented to sexual activity with him, this instruction does not warrant appellate intervention. While it would have been better had the trial judge not mentioned “abuse of authority”, there can be no concern that the jury relied on the concept improperly. First, the theory was mentioned only in passing; it was not drawn out in the trial judge’s instructions. Second, what he said was both factually and legally accurate; the appellant was the complainants’ employer, which meant he was in a position of authority over each of them, so if the complainant’s had consented – which, while not a contested issue, was not conceded – that consent would have been legally impaired if it was induced by an abuse of the employer-employee relationship: see Criminal Code, s. 273.1(2)(c).

[18] The isolated passage quoted above is the only place where “abuse of authority” is discussed. When the charge is read as a whole, it is clear that the jury would not have placed their focus on that single comment to the detriment of the defence position that the sexual assaults did not happen at all. Consent was not conceded, which meant the trial judge had to instruct the jury on the Crown’s obligation to prove its absence beyond a reasonable doubt, but it would have been obvious that this was not the main issue for them to consider.

The verdict regarding M.D. was reasonable

[19] The appellant argues that the verdict concerning M.D. was unreasonable because the Crown did not call any evidence to show that the massages the appellant gave to her were sexual in nature. The similar fact evidence, in the appellant’s submission, was not capable of proving this point beyond a reasonable doubt. To succeed on this ground under s. 686(1)(a)(i) of the Criminal Code, the appellant had to establish that no properly instructed jury, acting judicially, could reasonably have found him guilty of sexually assaulting M.D.: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 79; R. v. Arias-Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2; R. v. Vassel, 2024 ONCA 666, at para. 5.

[20] The test to determine whether conduct is of a sexual nature is objective. The question to ask is: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11.

[21] The appellant argues that because M.D. conceded that she did not view what the appellant did as sexual in nature, it was not reasonable for the jury to view it that way. However, M.D.’s impressions are not determinative. It is important to place her testimony in its proper context, most notably the successful similar fact application, which permitted the jury to use the similarities across the counts when considering whether the unwanted massages were of a sexual nature. M.D.’s testimony that the appellant would massage her against her wishes while they were alone in the restaurant, when considered together with the evidence relating to the other counts, meant that it was open to the jury to find that the touching was sexual.

[22] We reject this ground of appeal.

Conclusion

[23] For these reasons the appeal is dismissed.

"P. Lauwers J.A."

"J. George J.A."

"J. Copeland J.A."

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.