Court of Appeal for Ontario

Date: September 12, 2025 Docket: C70105 Judges: Miller, Paciocco and Copeland JJ.A.

Between

His Majesty the King Respondent

and

Enzo Dario De Jesus Carrasco Appellant

Counsel:

• Breana Vandebeek, for the appellant
• Deepa Negandhi, for the respondent

Heard: February 20, 2025

On appeal from the convictions entered on August 6, 2020, by Justice Robert F. Goldstein of the Superior Court of Justice, with reasons reported at 2020 ONSC 4743.

Opinion of the Court

B.W. Miller J.A.:

[1] The appellant was the manager of the bar where the complainant worked. The appellant was convicted of sexual assault and voyeurism after touching the complainant in the bar basement, an incident that the appellant intended to be captured by a security camera. The video recording had been destroyed by the time of the trial, but the appellant had an outtake on his phone. He appealed his convictions on the basis that the trial judge erred by (1) over-relying on the complainant's demeanor when assessing her credibility; (2) misapplying the adopted admissions rule, and (3) misapplying the doctrine of reasonable expectation of privacy.

[2] For the reasons that follow, I would dismiss the appeal.

Factual Overview

At the College Street Bar

[3] The appellant was the manager of the College Street Bar. The complainant worked there briefly as a hostess in 2016, while also doing some modelling work on a freelance basis. The complainant testified that the appellant would often invite her down to the basement office to sit and talk with him. This made her uncomfortable, as she felt she should be upstairs doing her job. On one occasion on November 24, 2016, when the complainant told the appellant that she wanted to get back to work, the appellant – who was seated opposite the complainant – told her she was "too tense" and reached forward and began massaging her upper legs. On her evidence, he ignored her request to stop, stood up and moved behind her to massage her shoulders. He then manipulated her into a standing position and against a wall, pulled her pants down from behind, and "put his hands all over" and digitally penetrated her. The complainant testified that she didn't recall how it ended, but that he eventually stopped after 10 or more minutes and she believed she returned upstairs to her work.

[4] The appellant testified that the complainant had complained to him of a knot in her back and asked him for a massage. As he had some experience with giving massages he complied: first bracing her against the wall and then pulling her pants down so as to better apply pressure to her glutes. He denied touching her anus or vagina, and denied that he touched her sexually in any way.

Later That Night

[5] The appellant testified that the complainant later went with him to his apartment after work. The complainant testified that this was possible, although she had very little memory of what happened that night. She remembered there was one occasion over the course of her employment when the appellant called for a taxi to drive her to her home, and she was surprised when he got into the cab as well and went to his place instead. She testified that although she had not been drinking or taking drugs that night – and would not drink while at work – she felt very woozy and had virtually no memory of what happened thereafter. She wondered if she had been given "an external substance".

The Appellant Sexually Assaults the Complainant's Friend

[6] In December 2016, a female friend from out of town came to stay with the complainant. She came to the bar to wait for the complainant to finish her shift, and ended up sitting at the bar with the appellant and Gavin MacMillan, who was the owner of the bar and the appellant's boss. The complainant had warned her friend that the appellant was a "dirtbag" and to be careful around him. After her shift was over, the complainant wanted to go home and study. Her friend had tentatively made plans to meet up with another friend and go to another venue, and so stayed behind at the College Bar waiting for a text to confirm plans. Despite believing the appellant to be a sexual predator, the complainant believed her friend would be safe with Mr. MacMillan present.

[7] The complainant was wrong. Mr. MacMillan and the appellant violently raped the complainant's friend over several hours. Both would ultimately be convicted of sexual assault and receive lengthy prison sentences. In December 2016, the police spoke to the complainant as part of the investigation into her friend's case.

The Photos

[8] Over the course of that investigation, the police discovered a photo on the appellant's phone, taken by a third party, of the complainant against the wall in the basement office of the College Bar, with her pants pulled down, her buttocks exposed, and the appellant touching her back. In a second interview, the police showed the photo to the complainant.

[9] The complainant had been unaware that she had been photographed. She broke down in tears during the police interview and told the officers about the appellant's sexual assault on her that night. At trial, she denied the appellant's account that she had been shown the photo while at the appellant's apartment later that night, had laughed about it, and told the appellant he could share it with others.

The Text Messages

[10] The police also recovered text messages from the appellant's phone. There were text conversations between him and Mr. MacMillan, discussing images taken from a security camera in the basement office showing the "massage" encounter. (The security camera video was automatically erased after two weeks on a rolling basis, and so the video recording was no longer available at the time of trial).

[11] At trial, the appellant denied that the texts had any sexual character, or that they supported the conclusion that the appellant's touching of the complainant was sexual and non-consensual.

The Trial Judge's Findings

[12] The defence's theory was that the basement encounter between the appellant and complainant was not a sexual assault, but instead a non-sexual massage at the complainant's request. The appellant supported the argument with evidence that the complainant went with the appellant to his apartment later that night, which the appellant says she would not have done if he had sexually assaulted her earlier in the day. Furthermore, the appellant argued that if he had sexually assaulted her, she would not have left her friend with him at the bar.

[13] The trial judge rejected the appellant's evidence, finding it to be "nothing more than a pack of lies." He rejected the appellant's account of a consensual, non-sexual massage, in part because it was contradicted by the text messages with Mr. MacMillan, which the trial judge found to be evidence that the appellant "considered the encounter to be sexual – either for his own gratification, or for Mr. MacMillan's gratification." Some of the appellant's texts were detailed descriptions of the complainant's naked breasts, and others had him bragging to Mr. MacMillan about getting the complainant's pants down.

[14] The trial judge accepted the complainant's evidence "regarding the issue of consent and whether the touching was for a sexual purpose." The trial judge accepted, on the basis of texts between the appellant and complainant, that the complainant had gone with the appellant to his apartment that night, but 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." Based on the complainant's testimony and the text messages, he was satisfied of the appellant's guilt of sexual assault beyond a reasonable doubt.

[15] The appellant was also convicted of making a recording for a sexual purpose, contrary to s. 162(1) of the Criminal Code, R.S.C. 1985, c. C-46. The elements of that offence, as recounted by the trial judge, are that a person commits the offence where that person: (1) surreptitiously (2) observes or makes a recording (3) of a person who is in circumstances that give rise to a reasonable expectation of privacy, and (4) the recording is done for a sexual purpose.

[16] The appellant argued that the recording of the complainant using the security camera system was not surreptitious as the complainant knew about the cameras, and that as she was aware she was being filmed she had no expectation of privacy.

[17] The trial judge found that the complainant did not know that there was a security camera in the basement, and that even if she had known, she still had a reasonable expectation of privacy that amounted to an expectation that "her direct boss would not grope her in a basement office so that her ultimate boss could watch." The trial judge concluded the recording was for a sexual purpose, supported by the finding that the appellant and Mr. MacMillan had a shared practice of bringing women down to the basement office where their sexual counters could be filmed surreptitiously for the other's viewing. Accordingly, the appellant was also found guilty on that count as well.

[18] The appellant was acquitted of a third count – of disseminating an intimate image – as the trial judge had a reasonable doubt that the appellant had intended to send the image that he sent.

The Issues on Appeal

[19] On appeal, the appellant argued that the trial judge made three errors:

1. The trial judge erred in using the complainant's demeanour in testifying as grounds to believe that she would not have agreed to having a photo of herself partially nude taken and disseminated to others;

2. The trial judge erred in using the hearsay part of the text conversation (the words attributed to Mr. MacMillan) as evidence of the appellant's sexual purpose in touching the complainant; and

3. The trial judge erred in finding the complainant had a reasonable expectation of privacy in the basement office.

Analysis

[20] As explained below, I do not agree that the trial judge made any reviewable errors, and I would dismiss the appeal.

1. Reliance on the Complainant's Demeanour

[21] The appellant argued on appeal that the trial judge erred by relying on the complainant's testimonial demeanour as a reason to believe the complainant and disbelieve the appellant, that these credibility findings went to the core of the case, and that a new trial is therefore required. Although I agree that the trial judge's reliance on the complainant's demeanour was an error, it was not an overriding one.

[22] The trial judge's references to the complainant's demeanour were made while he was explaining why he disbelieved the appellant's evidence that he had shown the photo taken in the basement of the bar to the complainant at his apartment later that night, that she had laughed when she saw the photo, and that she gave him permission to share it with others:

I carefully observed V.B. on the witness stand. I observed her demeanour and her manner of speaking. It does not ring true she would have laughed when she saw the photograph and then give 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 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.

[23] The trial judge should not have engaged in this reasoning. In effect, he relied upon the testimonial demeanour of the complainant to gauge her character and then inferred based on her character that she was not the type who would have laughed if shown the photograph. Although this reasoning was deeply problematic, as I will explain, it does not give rise to a reversible error.

[24] First, the trial judge made this comment as an aside. He made it while explaining, after already dismissing the charge of transmitting an intimate image because of the failure of the Crown to prove intentional transmission, that had he been satisfied that intentional transmission had occurred he would not have accepted the appellant's claim that the complainant had given him permission to share the image. This was not a central factual determination in the case.

[25] Moreover, it did not bear materially on the resolution of the other charges. He rejected the appellant's testimony not because of the complainant's demeanour, but because it was flatly contradicted by some text messages he had exchanged with Mr. MacMillan. The trial judge found his testimony to be a "pack of lies". In contrast, he found the complainant's account to be supported by the text messages, including statements made by the appellant himself.

[26] I would deny this ground of appeal.

2. Improper Use of Text Messages

[27] The second ground of appeal is that the trial judge erred in his use of the text messages between Mr. MacMillan and the appellant by treating statements that Mr. MacMillan made as admissions made by the appellant through adoption. I am not persuaded by the argument.

[28] The trial judge relied on texts exchanged between Mr. MacMillan and the appellant in several places in his decision, including as evidence of the sexual nature of the touching, and as evidence contradicting and undermining the appellant's credibility. The appellant argues that the trial judge misapplied the adopted admissions rule expressed in R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 49-50 in relying on the text messages authored by Mr. MacMillan. He argues that the trial judge did not apply the cautionary approach endorsed in Robinson, at para. 58, and failed to consider adequately the surrounding context before drawing that inference. I would deny this ground of appeal. The trial judge did not err.

[29] The material exchanges constituted a virtual conversation between the two men, in which they responded to each other's comments. Most of the material comments were made by the appellant. Mr. MacMillan's corresponding comments were admissible to give the appellant's comments context and meaning. The credibility inferences depended largely on the fact that the comments were made, rather than their truth, since the conversations did not fit the scenario the appellant advanced. Moreover, and in any event, there was a solid foundation for a finding that the appellant adopted the statements of Mr. MacMillan, and in using the entire conversation as evidence against him. This is not a case that depended on the precarious inference that the appellant adopted statements by remaining silent and not offering an explanation or denial that would have been expected. He positively signalled his assent to comments Mr. MacMillan made by provoking Mr. MacMillan's comments with questions, and by expressing his approval with responsive observations such as "Hahaha that bitch". This evidence was obviously admissible and available for the uses the trial judge gave to it. He was not required to rehearse the technical basis for its admission or to recount all considerations in determining admissibility. There is no basis to interfere.

3. The Reasonable Expectation of Privacy in the Basement Office

[30] With respect to the charge of making a recording for a sexual purpose, the appellant argued that the trial judge misapplied R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, in finding that the complainant had a reasonable expectation of privacy in the basement office. The appellant argued that unlike the recording device in Jarvis, the basement security camera had a valid security purpose, the complainant knew the camera was there, and she therefore knew that she would be filmed if she were in the basement. She could not therefore have had a reasonable expectation of privacy.

[31] The argument cannot succeed. First, the trial judge's factual finding was that the complainant did not know there was a security camera in the basement. That finding was not challenged on appeal, so the argument has no factual foundation. This is enough to dismiss this ground of appeal.

[32] Second, although the primary purpose of the security camera may have been security, as the appellant testified and the trial judge found, the appellant and Mr. MacMillan had a practice where they intentionally used the basement security camera to record their sexual exploits for each other's benefit. That the recording had a non-sexual function does not negate the sexual purpose to which the appellant put it. The trial judge found that the appellant sexually assaulted the complainant in the location that he did, precisely so that it would be recorded on video. I have found no basis for interfering with that finding. Even if there was a legitimate security reason for the filming, there can be no realistic suggestion that the complainant did not have a reasonable expectation of privacy in not having her sexual assault captured on video.

[33] I would deny this ground of appeal.

Disposition

[34] I would dismiss the appeal.

Released: September 12, 2025

"B.W. Miller J.A."

"I agree. David M. Paciocco J.A."

"I agree. 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.