Court File and Parties

Court File No.: Toronto Information No. 12-10000159-00

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

James Stewart Brown

Before: Justice David A. Fairgrieve

Heard on: March 8, 22, 25, 26 and 28, 2013

Reasons for Judgment released: April 9, 2013

Counsel:

• Darren Hogan, for the Crown
• Tyler Smith, for the accused, James Stewart Brown

FAIRGRIEVE J.:

Background and Charges

[1] James Stewart Brown was employed for nine years as a personal care attendant ("PCA") in the locked unit for residents suffering from advanced Alzheimer's disease or other forms of dementia at the Kensington Gardens nursing home, a long-term care facility in downtown Toronto. Mr. Brown is now charged with sexual offences allegedly committed in December 2011 against two elderly women residents who lived on that unit, Mrs. T., then 88 years old, and Mrs. J., then 79. After the Crown elected to proceed by indictment, Mr. Brown elected to be tried in the Ontario Court of Justice and pleaded not guilty to the four counts on which the Crown proceeded.

[2] The specific charges, which arose from two separate incidents, are the following:

Count 1: December 20, 2011, sexual assault on Mrs. T. (s. 271(1)(a))

Count 2: December 20, 2011, sexual exploitation of Mrs. T., a person with a mental or physical disability in a relationship of dependency, by touching her body, for a sexual purpose, with his penis (s. 153.1(1)(a))

Count 5: December 18, 2011, sexual assault on Mrs. J. (s. 271(1)(a))

Count 6: December 18, 2011, sexual exploitation of Mrs. J., a person with a mental or physical disability in a relationship of dependency, by touching her body, for a sexual purpose, with his hand (s. 153.1(1)(a))

It might be noted that although the sexual exploitation counts unnecessarily alleged both that Mr. Brown was in a position of trust or authority towards each woman and also that each was in a relationship of dependency upon him, the Criminal Code provision requires that only one of the alternatives be made out. In this case, there was no issue concerning the nature of the respective relationships: it was admitted that the accused was in a position of trust with respect to each alleged victim, and there could be no doubt that both disabled women were dependent upon Mr. Brown for their care. That element of the offences charged in Counts 2 and 6 was therefore not in issue.

[3] An agreed statement of fact was also filed, making it unnecessary for the Crown to call any medical evidence. It stated that both women suffered from progressive dementia to such an extent that they both needed extensive care for the basic functions of daily living, including dressing, eating, bathing, toileting and mobility. Reference was made to the Folstein Mini-Mental Status Examination, a tool used to measure the level of a person's cognitive impairment that was administered when a resident was admitted to the secure unit known as One West. A test score between 18 and 23 indicated moderate cognitive impairment; a score from zero to 17 indicated severe impairment. When Mrs. T. was admitted to the unit in February 2009, her test score was only 8, but it rapidly decreased to zero during her first year there. Mrs. T. died in October 2012. Mrs. J. had a test score of zero when she was admitted to One West in December 2010, since she did not even have the cognitive ability to take the test.

[4] It was agreed that at the time of the alleged offences in December 2011, neither Mrs. T. nor Mrs. J., due to her mental and physical decline, had "the cognitive ability to consent to anything." Accordingly, the absence of consent by both alleged victims to Mr. Brown's impugned conduct was admitted.

[5] Apart from the general evidence relating to the layout of the One West unit, the duties of the employees who worked there and the procedures that were normally followed in caring for the residents (all of which provided the context in which the offences were allegedly committed), it was accepted by both parties that the evidence in relation to the two separate incidents involving each alleged victim had to be considered separately. While Mr. Hogan, Crown counsel, initially indicated that a similar fact application might be made to have the evidence in relation to Counts 1 and 2 apply to the proof of Counts 5 and 6, and vice versa, the Crown did not pursue that application. In fact, as it turned out, the two separate incidents bore almost no resemblance to each other, and it was accepted that the evidence called with respect to the alleged incident that occurred on one date was not admissible with respect to proving any aspect of the other.

The Presumption of Innocence and the Burden of Proof

[6] Given the presumption of innocence, of course, Mr. Brown can only be found guilty of a particular offence if the Crown has proved all of its essential elements beyond a reasonable doubt. The Crown's burden of proof clearly extends to establishing both the actus reus and mens rea of each specific offence to that standard.

[7] There appeared to be little disagreement between the Crown and defence as to the constituent elements of the different crimes charged here, although Mr. Hogan did point out that while "a sexual purpose" was expressly stated to be part of the mental element required for sexual exploitation under s. 153.1(1), such a purpose was not required to make out a sexual assault under s. 271(1). He relied primarily on the judgment of the Supreme Court of Canada in R. v. Chase (1987), 37 C.C.C. (3d) 97, where McIntyre J., writing for the court, held that the test for determining whether a sexual assault was committed is an objective one and that the offence does not require a specific intent. At pp. 103-4, he stated:

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) [now s.265(1)] of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" … The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct … will be relevant. … The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in determining whether the conduct is sexual.

[8] The same point was made in R. v. S. (P.L.) (1991), 64 C.C.C. (3d) 193 (S.C.C.), where Cory J., although dissenting in the disposition of the appeal, stated at p. 205:

By concluding that the sexual assault was not established because there was insufficient proof of sexual motivation, the majority [of the Nfld. C.A.] in effect converted the offence of sexual assault to one of specific intent. This would, of course, be contrary to Chase which held that the offence is one of general intent and established that the intent of the person committing the act is only one of the factors to be considered in determining whether the overall conduct had a sexual context. The appropriate question which had to be considered in this case was whether, notwithstanding the absence of a proven sexual intent, the touching was committed in the circumstances of a sexual nature.

[9] I accept that that is also the appropriate question to be asked in this case with respect to the sexual assault charges. It might be observed, however, that the importance of the accused's purpose as a factor in determining whether there was a sexual context to his conduct will vary according to the circumstances: see R. v. J. (C.) (1990), 58 C.C.C. (3d) 167 (Nfld. C.A.). Indeed, in a situation involving a PCA's providing intimate care for a patient with minimal cognitive awareness, the caregiver's purpose might easily become the paramount consideration in assessing whether a particular interaction was of a sexual nature.

[10] Since Mr. Brown testified and gave an innocent, or at least non-sexual, explanation for his conduct that is alleged to constitute the offences in question, his credibility is clearly an important issue in this case. Given the conflicting testimonial accounts of the material facts and the need to determine which evidence should be accepted as reliable, the case calls for the application of the principles stated by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at p. 409 (S.C.C.), and explained somewhat more recently in R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 at para. 23 (S.C.C.), and R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 at para. 13 (S.C.C.).

[11] Given that the accused is presumed to be innocent of the charges and that he has denied that the offences were committed, the doctrine of reasonable doubt applies to the credibility issue that arises in this case. If the accused's testimony that there was nothing sexual in his respective conduct in relation to the two women is either believed or leaves the Court in a state of reasonable doubt concerning that essential element of the particular offence, then the law requires that he be found not guilty on that count. A third possibility, however, must also be considered. Even if the relevant defence evidence is completely rejected, the accused must still be found not guilty unless it can be said that the evidence of the Crown witnesses on which the Crown's case depends is accepted as proof beyond a reasonable doubt of the facts that must be established to make out the elements of the offence. There is clearly nothing illogical about rejecting the defence evidence, but still not being satisfied by the other evidence of the accused's guilt beyond a reasonable doubt.

[12] As Watt J.A. observed in R. v. Wadforth, (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 at para. 5 (Ont. C.A.),

The formula in W.(D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed.

Bearing that underlying message constantly in mind, then, one can proceed to consider the evidence in relation to the individual counts.

The Alleged Offences in Relation to Mrs. J. (Counts 5 and 6)

[13] The first incident chronologically, as well as the far less serious of the allegations, concerns an event that occurred on December 18, 2011. The Crown's case essentially relies on the evidence of a single eyewitness, Maria Coelho. Mrs. Coelho testified that on that Sunday she was visiting her mother, a resident on the One West unit. Since her mother had been transferred there in March or April of 2011, her personal care attendant had been James Brown. Since she visited her mother every second day or so, Mrs. Coelho also became familiar with some of the other residents, including Mrs. J., whom she described as a very friendly but an "in your face" sort of person. She explained that Mrs. J. would do such things as follow people around and then give them a kiss or say how lovely they were. She described her as an elderly lady who had lost most of her mental faculties, so she never made much sense.

[14] Mrs. Coelho testified that at the time in question she was sitting in her mother's room and could see Mrs. J. standing out in the hallway mumbling something. According to her testimony, Mr. Brown came up to Mrs. J., facing her, and then grabbed her by her arms and turned her around. When Mrs. J. was then facing in the opposite direction, she stated, Mr. Brown proceeded to "grope" her. Mrs. Coelho testified that it was not like a slap, but more like a grab, as the accused brought his right hand up, cupped slightly, and grabbed what she described as the "cheek of her bum" for a second or so. This motion was immediately followed by what the witness described as "a little smirk" or "a little smile" on Mr. Brown's face. Mrs. Coelho testified that it was more the accused's facial expression immediately after touching Mrs. J. that aroused her concern. After this occurred, the witness said that Mrs. J. just walked away, apparently in the direction of her own room down the hall.

[15] In cross-examination, Mrs. Coelho agreed with Mr. Smith's suggestion that she had thought that Mr. Brown was somewhat strange or weird even before this incident occurred, based mainly on her disapproval of the way she had seen him treat another resident. Nonetheless, she disputed the implication that she disliked him or bore him any ill will. She did, however, agree that she contacted the police about this matter only after she had read a newspaper report about Mr. Brown's alleged involvement in the later incident.

[16] Mr. Brown testified in his own defence. He testified that although he was not the PCA assigned to Mrs. J., he assisted her sometimes both in the dining room and at other times, since she was a "wanderer" who would go into other residents' rooms and do things like remaking beds that had been turned down or putting clothes away that had been intentionally left out. He testified that while Mrs. J. was affectionate and outgoing, she could also be a hindrance to the people trying to do their jobs, so on occasion he would try to redirect her to the other side of the hall or turn her around and give her a little nudge to get her moving somewhere else. Doing this would involve some physical contact with the resident.

[17] Mr. Brown also acknowledged that although he could not recall the specific incident that Mrs. Coelho described, he did touch Mrs. J. from time to time to check the condition of her diaper. Mr. Brown testified that even if a resident was not a particular PCA's responsibility, if the resident had a soiled diaper, he or she could be directed to the PCA who would change it. According to Mr. Brown's evidence, one could usually tell if a resident had a soiled diaper either by the smell or by feeling under the buttocks to see if the diaper was sagging or if one could feel any solid weight in it. He added that one could detect a very wet diaper by turning down the top a little to see if the coloured stripe had turned blue. In cross-examination, Mr. Brown appeared to agree with Mr. Hogan's suggestion that it would generally be inappropriate to touch the diaper or buttocks of a resident, but he went on to say that it was an accepted practice at the facility for purposes of determining whether a resident needed changing. He rejected the Crown's suggestions that he had touched Mrs. J. for other than a legitimate care purpose or that he had touched her buttocks in the way Mrs. Coelho described as some kind of display of reciprocated affection.

[18] In my opinion, the Crown has failed to prove either of the two offences charged in Counts 5 and 6. I am satisfied that Mrs. Coelho was a credible witness, in the sense that she was testifying truthfully concerning the observations she honestly believed she made, but I do not think her evidence is sufficiently reliable to permit findings of fact beyond a reasonable doubt to be based on it. The touching of Mrs. J.'s posterior by a caregiver would seem on its face to be of an equivocal or ambiguous character. Indeed, Mrs. Coelho testified that it was really the accused's facial expression immediately afterwards that led her to believe she had just witnessed a "groping". While the evidence of her observation of Mr. Brown's "little smirk" was admitted without objection, for the reasons I will state, I doubt that its probative value outweighed its prejudicial effect. I think that the evidence ought to have been excluded and should be ignored now.

[19] In my view, this kind of impressionistic demeanour evidence is fundamentally unreliable, based as it is more on a witness's own interpretation than objective observation. In R. v. Levert (2001), 159 C.C.C. (3d) 71 and p. 81 (Ont. C.A.), Rosenberg J.A. expressed the following concern with respect to comparable demeanour evidence relating to an accused led as after-the-fact evidence capable of supporting an inference of guilt:

The probative value of this type of evidence [unusually calm reaction by the accused upon being confronted with an allegation of sexual abuse] is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused's demeanour was found to have played a part in the wrongful prosecution. … Perceptions of guilt based on demeanour are likely to depend on highly subjective impressions that may be difficult to convey to the jury, and in any event the significance of the reaction will often be equivocal.

See also R. v. Baltrusaitis (2002), 162 C.C.C. (3d) 539 at pp. 561-2 (Ont. C.A.).

[20] Quite apart from the inherent unlikelihood that a PCA would engage in such impugned conduct in the hallway in full view of other people, Mrs. Coelho's evidence is contradicted, or at least given an innocent explanation, by Mr. Brown's testimony that if he had touched that part of Mrs. J.'s body, it was either for the purpose of checking the condition of her diaper or steering her in a different direction. The accused's evidence leaves me with at least a reasonable doubt that there was nothing of a sexual nature in the alleged physical contact between Mr. Brown and Mrs. J. that was witnessed by Ms. Coelho. That being the case, acquittals are required on both Counts 5 and 6.

The Alleged Offences in Relation to Mrs. T. (Counts 1 and 2)

[21] The allegations with respect to the occurrence on December 20, 2011 are of an altogether different and considerably more serious character. Two Crown witnesses, one the registered practical nurse and team leader on the One West unit, and the other the part-time, so-called "short-shift" PCA, testified with respect to observations they made of Mr. Brown and Mrs. T., a resident for whose care the accused was responsible. While there were significant differences concerning particular details, they both described seeing Mr. Brown, with his pants down, standing over Mrs. T. as she sat naked on the toilet in her bathroom facing him. Mr. Brown admitted in his testimony the accuracy of those observations, but testified that Mrs. T. had twice pulled his pants down as part of some kind of playful interaction between them. He stated that his genitals never came into contact with her body, and that he failed to pull up his pants right away only because he was giving priority to her care. While conceding the inappropriateness of what had occurred, the accused testified that there was nothing sexual about the circumstances that had unfortunately been misperceived and misconstrued by the Crown witnesses. Again, the evidence in relation to these counts raises issues of credibility and reliability and requires the application of the W.(D.) principles.

(i) The Evidence of the Registered Practical Nurse, Fissaha Measho

[22] Fissaha Measho testified that in December 2011 he had been working at the Kensington Gardens One West unit as a registered practical nurse for about two years. He testified that on December 20, 2011, he worked the shift from 3:00 to 9:00 p.m., as did the two fulltime PCAs, one a woman named Rowena Ballesteros and the other Mr. Brown. In addition, a third PCA, Beverly Reyes, worked from 5:00 to 9:00 p.m. to assist with the residents' dinner and preparing them to go to bed. Mr. Measho described the locked unit as having about 25 elderly residents, though the number fluctuated with deaths and new admissions. All of the residents suffered from advanced Alzheimer's or other forms of dementia and needed varying levels of care. His duties as a registered practical nurse involved giving the residents their medication, monitoring the feeding and care of the residents, assessing the needed level of care and generally supervising the PCAs working on the unit. Mr. Measho testified as well that he made rounds at some point every evening before 9:00 p.m. to ensure that each resident was both breathing and comfortably in bed for the night. Mr. Measho testified that Mr. Brown was the PCA assigned to Mrs. T., who occupied the room at the end of the hall furthest from the common area where the dining room and TV room were located. Mrs. T's room, like some of the others, had a private bathroom. According to Mr. Measho's evidence, Mrs. T. was in need of "total care" by December 2011, which meant that her dementia had progressed to the point where she needed someone to ensure that she took her medication and that she was fed, as well as washing her, changing her clothes and moving her in a wheelchair from place to place. Although the subject of some dispute, Mr. Measho testified that Mrs. T.'s plan of care at that time meant that she needed two PCAs to transfer her from her bed to the toilet in her bathroom and also two PCAs to change her diaper or put her to bed.

[23] Mr. Measho testified that around 8:00 p.m. on December 20, which he described as a fairly ordinary day, he was making his usual rounds checking on the residents. When he walked into Mrs. T's room through the door that had been left ajar, he looked around, saw that she was not in bed, and then looked into the bathroom. He added, in cross-examination, that he entered the room normally, not trying to be quiet, but he thought, based on prior experience, that Mr. Brown might be a little hard of hearing. The bathroom door, which opened into the bedroom, was about two-thirds open, with the light on inside the bathroom. Through the "crack" on the hinge side of the door, he was able to see a reflection in the mirror that hung on the angled wall above the sink. From that vantage point, Mr. Measho testified that he could see Mr. Brown standing in front of Mrs. T. who was sitting naked on the toilet with her diaper down around her ankles. Mr. Brown, he said, was naked from the waist down, with his pants down below his knees. According to Mr. Measho's testimony, Mr. Brown had one hand on the back of Mrs. T.'s head and was attempting to put his penis into her mouth. Mr. Measho explained that because of Mrs. T.'s advanced Alzheimer's, she appeared not to be aware of what was going on, although her face was very close to the accused's genitals.

[24] When asked for further details of his observations, Mr. Measho testified that when the accused's genital area was right in Mrs. T.'s face, he saw her moving her head from left to right, but he could not tell whether she was moving it herself or whether Mr. Brown was forcing her head with his left hand. After he saw that, Mr. Measho testified that he moved around the open door and looked directly at the accused and Mrs. T., rather than just seeing their reflection in the mirror. Mr. Measho further testified that at one point he saw Mr. Brown move his right hand down and touch M.T.'s breast and nipple, although he was uncertain as to precisely when he made that observation. He also testified that when he took this "peek" around the door, he could see Mr. Brown's penis, although he could not say whether it was in a flaccid or erect state. Mr. Measho added that although he did not actually see Mr. Brown's penis in Mrs. T.'s mouth, he saw his penis touching her face. The witness also testified that he could hear Mrs. T. mumbling and moaning, but that he could not make sense of what, if anything, she was saying.

[25] Mr. Measho then testified that instead of intervening to stop Mr. Brown, he rushed out of the room to get another witness. He testified that at the time he thought he needed a witness, so that, if there was a denial later, it would not just be his word against that of Mr. Brown. In cross-examination, Mr. Measho stated that he had been trained that way, but when pressed further by Mr. Smith, he backed off and said that although he had not actually been taught to do that, it was his natural reaction to want to have a confirmatory witness. Mr. Measho testified that he quickly found Mrs. Reyes and they ran back into the room together, which took, he said, less than 10 seconds. Mr. Brown and Mrs. T. were still in the same position and could again be seen in the mirror through the crack of the door. When he asked Ms. Reyes if she could see, she said that she could. They then went around the door which was still partly open and, according to Mr. Measho's evidence, he called Mr. Brown by name and told him to pull up his pants. The accused complied and then went to the nursing office, as Mr. Measho directed him to do.

[26] Mr. Measho testified that he spoke to Mr. Brown in the nursing office while they waited for the nurse manager to come. In a statement that was admitted by the defence to be voluntary despite disputing the words actually spoken, when Mr. Measho asked him why he had done this, Mr. Brown replied, "I got carried away." Mr. Measho testified that these were Mr. Brown's exact words. In cross-examination, he rejected Mr. Smith's suggestions both that the accused said something more and that the words he used were, "She was playing a game and it got carried away," which turned out to be slightly different from Mr. Brown's eventual evidence in any event.

[27] In cross-examination, Mr. Measho testified that he had worked with Mr. Brown for a couple of years and agreed with Mr. Smith's suggestion that he had found him quiet and guarded, although he added that Mr. Brown was punctual and that he tended to just read his book rather than having unnecessary conversations. Mr. Measho also agreed that he could do his rounds at any time during his shift, so that the PCAs would not be surprised if he came around unannounced at any time. He stated that he happened to go to Mrs. T.'s room when he did that night only because it was a convenient time for him. When asked by Mr. Smith about Mrs. T.'s care plan on December 11, 2011, Mr. Measho conceded that her plan had changed over time and that he could not remember for certain if a two-PCA requirement was actually written in her plan at that time. Mr. Measho also agreed that the bathroom door was open two to three feet, acknowledging that he did not know whether there was a lock on either the bedroom door or the bathroom door.

[28] With respect to his observations, Mr. Measho clarified that when he initially saw Mr. Brown in the mirror with his pants down, he could basically see only his buttocks, but that when he looked around the open door, he could see Mr. Brown's penis touching M.T.'s face in the area of her mouth and nose, as well as the motion of her head. He repeated that he could not say what state the accused's penis was in or whether it was circumcised, but stated that he saw Mr. Brown's genital area against her face.

[29] When cross-examined on alleged inconsistencies between the witness's videotaped statement given to the police the night of the event and his testimony at trial, Mr. Measho conceded that he did not mention in his statement that he had seen Mr. Brown use his hand to touch Mrs. T.'s breast. He also agreed that while he had a present recollection of it, he could not say whether it was an observation he made through the crack of the door or when he peeked around the open door shortly afterwards.

[30] Mr. Measho did testify, however, that he saw the accused's penis when he was looking around the door and saw Mrs. T.'s head moving back and forth. He said that he could see the accused's genitals touching Mrs. T.'s face in the area of her mouth or nose, but also that he could see his genital area "very close" to her face, suggesting it may not have been in actual contact with it. Mr. Measho agreed with Mr. Smith's suggestion that in his videotaped statement to the police on the night in question, he had said, "I saw him putting his penis in her mouth." He testified, however, that he never actually saw it in her mouth and that what he could recall was significantly different from what he had said in his initial statement.

(ii) The Evidence of the Part-Time PCA, Beverly Reyes

[31] Mrs. Reyes testified that Mr. Measho ran up to her as she was in the hallway putting some laundry in a hamper, telling her to come quickly to see what was happening. She testified that they ran down to Mrs. T.'s room and entered quietly, where through the 3- or 4-inch crack of the bathroom door she could see Mrs. T. naked on the toilet and Mr. Brown standing in front of her with his pants down. She testified that Mrs. T.'s legs were between the legs of the accused. She testified that Mr. Brown's pants were all the way down to the floor, but that the upper part of his uniform covered his buttocks and genital area. She testified that because Mr. Brown had been wearing "scrubs" and his top was so long, she could not tell whether or not he was wearing underwear. Mrs. Reyes also testified that when she made her observations, Mr. Brown was very close to Mrs. T., standing right in front of her, and was holding her hands forcibly on either side of his waist. According to her evidence, the top of Mrs. T.'s head was at Mr. Brown's chest level, so that her face was lower than that. She testified that M.T.'s face and mouth were moving closer to his body, about 3 inches from it, but that she did not see it actually touch his body. She followed Mr. Measho to the open door, but by that point, Mr. Measho had said, "What are you doing? Pull your pants up!" and the accused, no longer holding her hands at his waist, immediately pulled up his pants. According to Mrs. Reyes' evidence, she made her observations of the accused and Mrs.T. directly through the crack in the door, not as a reflection in the mirror.

[32] Mrs. Reyes also testified that she was in the nurses' room when Mr. Measho asked the accused why he had done what he did. According to her evidence, Mr. Brown replied, while repeatedly pulling his hair back from his forehead, "I don't know. I don't know." She rejected the suggestions put to her by Mr. Smith in cross-examination that Mr. Brown said it was a game or that Mr. Brown had said that he had got carried away.

[33] Mrs. Reyes testified that she later returned to Mrs. T.'s room where she helped the other PCA, Ms. Ballesteros, get her ready for bed. Mrs. Reyes testified that she washed Mrs. T.'s private parts, put a clean diaper on her, and then the two of them managed to get her to bed using her walker. She testified that while two people were normally required to move Mrs. T. because she could no longer stand up by herself, Mr. Brown did not as a rule ask for any help with her, but simply managed on his own.

[34] In cross-examination, Mrs. Reyes testified that in December 2011, Mrs. T. was one of the residents who could still feed herself sometimes, depending on her mood, and that if she did not want to do something, she could say "No" and make a motion to move a person's hand away. She also testified that there was nothing unusual about a PCA having a resident sitting naked on a toilet, nor forcing a resident's legs together or keeping the resident's hands up at waist level to prevent the resident from reaching down and touching her urine or feces, evidently not an uncommon occurrence on the unit, although she had never seen Mrs. T. do that. Mrs. Reyes agreed that she observed on two or three occasions through the crack in the door that Mr. Brown had to lean forward to grab Mrs. T.'s hands or elbows hanging down at her side and put her hands back on his waist.

[35] Mrs. Reyes also agreed that not only were Mr. Measho's rounds unscheduled and liable to occur at any time, but that there was also a restorative care PCA named Karma who could appear at any time on the One West unit. While Karma was not necessarily scheduled to take Mrs. T. for a walk before bedtime, Mrs. Reyes had seen her do that on other days.

(iii) The Evidence of the Second PCA, Rowena Ballesteros

[36] Although Ms. Ballesteros did not make any directly relevant observations, she testified that she went to Mrs. T.'s room at Mrs. Reyes's request after the incident and found Mrs. T. still sitting naked on the toilet with her diaper and daytime clothes on the bathroom floor. She proceeded to wash her, put on a clean diaper and nightgown, and then, with the assistance of Mrs. Reyes who had come back, put her to bed. In cross-examination, Ms. Ballesteros testified that she did not observe any marks or injuries to Mrs. T. She also testified that with so many residents to put to bed after dinner, she or Mrs. Reyes could be anywhere on One West at that time of day.

[37] Despite the witness's evidence that Mrs. T. seemed "a little shaky" and "scared" when she assisted her after the event, for the reasons already stated with respect to the demeanour evidence concerning the accused, I do not think that this evidence was properly admitted. I will disregard it.

(iv) The Other Evidence Called by the Crown

[38] Two police officers also testified. Det. Aly Ramji was the Toronto Police Forensic Identification Services officer who had taken photographs of Mrs. T.'s room and bathroom several hours after the event in question. His photographs made it clear that his rough sketch of the bathroom that had been filed as an exhibit was not accurate concerning the placement of the toilet in the bathroom. Given the angle of the mirror over the sink, it became apparent that a person who had entered the bedroom and had looked into the bathroom through the crack in the door would have been able to see the toilet in the mirror, though almost certainly not directly as Mrs. Reyes had stated. Moreover, despite the earlier questions that had arisen based on Det. Ramji's misleading sketch, it was apparent from the photos that both looking through the crack into the mirror on an angle and directly from the opening of the door, an observer would have only a limited opportunity to see the front of a person standing close to, and facing, another person sitting on the toilet. While Det. Ramji took penile swabs from the accused and examined Mr. Brown's "scrub" pants and underwear, nothing of any relevance was found.

[39] D.C. Angela Roberts was also called by the Crown, although her evidence did not appear to have any probative value apart from establishing that Mrs. T. was later taken to the hospital and was found, from the perspective of the investigating officers, to be essentially unresponsive.

(v) The Evidence Given by James Brown

[40] As already stated, Mr. Brown, now 58, testified in his own defence. He testified that he had worked as a PCA on the One West unit of Kensington Gardens for nine years before December 20, 2011. He had been assigned to care for Mrs. T. for three or four years before then. He worked ten shifts between 3:00 p.m. and 11:00 p.m. every two weeks. On the evening in question, he testified, he performed his usual tasks while dressed in "scrubs," which he described as a short-sleeve V-neck shirt over a T-shirt, as well as cotton pants that had an elastic waist in the back and a drawstring that was tied at the front. He testified that after dinner in the unit, the atmosphere could be quite hectic. While the bulk of residents remained in the TV room, others returned to their rooms, some with family visitors. He testified that Mrs. T. had fallen about three weeks earlier and had hurt her knee, so that she required a wheelchair, although she was receiving attention from the restorative care person who sometimes came to take her for a walk before she went to bed. According to the accused, Mrs. T. could be difficult and cranky at times and was capable of saying "No" or "I can't do that," but was not otherwise "conversational."

[41] With respect to the question of how much privacy Mr. Brown could have anticipated with Mrs. T. in her bathroom, he testified that family visits were encouraged before 8:00 p.m. unless the resident was near death (in which case no time restrictions applied) and also that the restorative care person could come to a resident's room at any time. In addition, Mr. Brown stated that he was aware that Mr. Measho did his rounds at random times every evening to ensure that the residents were comfortable and in satisfactory condition and at some point would come into Mrs. T.'s room.

[42] Mr. Brown testified that he never required any assistance in putting Mrs. T. to bed and that in fact his preference with most of his residents was to do it by himself, since they tended to remain more focused and less distracted than if there were two PCAs getting them ready. He testified that Mrs. T. did not always want to go to bed at her bedtime, but that she was generally manageable. Sometimes, however, she would resist going to the toilet or make changing her diaper difficult. He described how she might slap him or yell or hold herself rigid or use her arms to push him away. On one occasion, he said, Mrs. T. had even bitten him, though not seriously. Mr. Brown testified further that Mrs. T. would sometimes grab her clothes or grab his, or slap him on his behind and laugh. With respect to her habits on the toilet, he said that if Mrs. T. was having a bowel movement, she would sometimes put her hand in her rectal area to try to touch her feces or examine it, soiling her hand in the process. Earlier, when she was still able to walk, he said, she had been known to put her feces in the sink or wrap it up and leave it elsewhere in her room.

[43] With respect specifically to the evening of December 20, 2011, Mr. Brown admitted that he did indeed have his scrubs pants and underwear down when he was caring for Mrs. T. in her bathroom. He testified that he had initially walked her into the bathroom where he pulled down her pants and removed her diaper, and he put her on the toilet in the usual way. He said that she then pulled down his pants and she laughed when he pulled them back up. Although it was not totally clear from his evidence how far he got with his normal procedure on the night in question, he described that he would usually remove her top and then wash her face, underarms, breasts and hands. He would then have her stand, supporting herself on the bar adjacent to the toilet, while he provided what was referred to as "pericare", washing her vaginal and rectal areas, before putting a new diaper on her. At some point during this procedure that night, after he had removed her top, she managed to pull down his pants and underwear together a second time (both, he said, had elastic waistbands, implying that the drawstring made no difference), and she then gave him a hug and laughed once more.

[44] Instead of immediately pulling up his pants, Mr. Brown testified that Mrs. T. at that moment suddenly looked as though she was about to have a bowel movement. Concerned that she might put her hands down between her legs or into the toilet, he moved her hands to his hips where he tried to hold them in an effort to keep her hands clean. Mr. Brown agreed that it was entirely inappropriate for him to have been caring for a resident while his pants were down, but he pointed out that his scrubs shirt went down to the top of his thighs and covered his genital area. He also testified that when she suddenly appeared to be having a bowel movement, he was simply more concerned with her care than with pulling up his pants. Mr. Brown testified that since Mrs. T. had often pulled his pants down at least partway on other occasions, when it happened that night, he was not particularly shocked by what she was doing. The accused insisted that the only part of his body that came into contact with Mrs. T. were his hands.

[45] Continuing his narrative of the event, Mr. Brown testified that he heard a noise and turned to his left to see Mr. Measho and Mrs. Reyes in the doorway of the bathroom. He testified that he then bent down and removed Mrs. T's pants, which were still around her ankles. According to the accused's evidence, Mr. Measho then said, "Leave her alone" or something to that effect, so he stepped away and only then pulled his pants up. He testified that he was surprised to see them and realized how it must have looked to them, but he testified that not only had it not occurred to him to pull up his pants until that point, but that the situation had not lasted for a long time.

[46] Mr. Brown agreed that when Mr. Measho told him to come with him to the nursing station, he did so, and that when they were seated there, Mr. Measho asked him, "Why did you do that?" Mr. Brown testified first that he himself replied, "It was a game that got out of hand. I got carried away," and then immediately corrected himself, stating that he actually answered, "It was a game that got carried away." Mr. Brown testified that he did not make any effort to explain what had happened, both because no one asked and because he did not think that anything he said could justify or explain it, adding that he was not the most verbal person.

[47] In cross-examination, Mr. Brown disputed Mr. Hogan's suggestion that Mrs. T.'s plan of care required two PCAs for toileting purposes, explaining as well that she was still able to stand and bear her own weight to allow a diaper to be put on her. He testified that he prepared her for bed by himself on the night in question because that was what he normally did, not because he wanted the opportunity to be alone with her in the bathroom. With respect to his utterance referring to it as "a game that got carried away," Mr. Brown stated that he viewed the other occasions on which Mrs. T. had pulled down his pants in the same way. He said that he could not recall if he had ever told anyone else that Mrs. T. had done this before. He also agreed that if Mrs. T. was being non-compliant or he needed assistance, he could have used the emergency call button hanging down near the toilet and that Mrs. Reyes would likely have been available to assist him. He did not think, however, either that he needed assistance or that immediate help would necessarily have been available. In answer to Mr. Hogan's question as to whether he did not think it would have been disturbing to Mrs. T. to be dealt with in that way by someone with his pants down, Mr. Brown testified that that simply did not occur to him at the time.

[48] He testified as well that Mrs. T. needed her medication before bed, and that while he thought the nurse, Mr. Measho, had probably already given it to her in the dining room earlier, he knew that Mr. Measho would be doing his rounds and could come in at any time.

[49] Mr. Brown repeated that Mrs. T. had removed his pants and underwear in one motion and disagreed with Mr. Hogan's suggestion that she lacked the strength or co-ordination to have done that. He also rejected the suggestion that there was a sexual component to the "game" that he later said had gone too far.

[50] Mr. Brown acknowledged that he could have pulled up his pants at any time, but that he thought then that it was better to distract her by continuing the game while proceeding to wash her face and torso. When she started to have a bowel movement, he pulled her hands towards his hips, but he denied that he was trying to move her face closer to his genitals. Mr. Brown admitted that he might have had a hand on Mrs. T.'s head, but did not know why, except that it was definitely not for the purpose of controlling her head or pulling her closer.

(vi) The Credibility Assessment and the Findings of Fact

[51] Count 2, the charge of sexual exploitation under s. 153.1(1), is particularized by the wording of the charge to make it a constituent element of the offence that Mr. Brown directly touched Mrs. T. with his penis. Accordingly, that is a fact that must be proved beyond a reasonable doubt by the Crown before the actus reus of the crime Mr. Brown is accused of committing can be said to have been established.

[52] Mr. Brown denied that his penis ever came into contact with Mrs. T.'s face or any other part of her body. Ms. Reyes also testified she never saw Mr. Brown's penis when she observed him through the crack in the door. In fact, she testified that because she was viewing Mr. Brown from behind and that his scrubs top covered his buttocks, she was not able to say whether he was still wearing his underwear when he was standing facing Mrs. T. on the toilet. It might be noted that the photographs of the bathroom and the diagram of the room prepared by the police, erroneous though it was in terms of the placement of the toilet, demonstrated that Mrs. Reyes was likely mistaken when she testified that she made her observations of the accused and Mrs. T. through the crack in the door directly and not as a reflection in the mirror, as Mr. Measho had described.

[53] I think it fair to say that Mr. Measho appeared to be both a keener observer and a more articulate witness than Mrs. Reyes, although I have no doubt about the honesty of both. Mr. Measho testified that he saw Mr. Brown's penis actually touching Mrs. T.'s face as her head was moving back and forth. While I would hesitate to say that Mr. Measho was necessarily wrong in that regard, there are a number of reasons why this aspect of his evidence should be given less weight than might otherwise be warranted. The first is that Mr. Measho himself admitted that he made an error in his statement to the police shortly after the event when he told them that he had seen the accused put his penis in Mrs. T.'s mouth. In his testimony, he retracted that obviously important part of his statement and agreed that he had not in fact made that observation. That naturally leads to some doubt, it seems to me, concerning the reliability of his differing evidence given in court on the same point. In addition, it might be of some significance that Mr. Measho was unable to say even whether the accused had an erection or not, although I am not surprised that a person coming upon such a sight involving a PCA and a naked 88-year old woman would have reacted with a degree of shock at the whole scene, rather than focusing in particular on Mr. Brown's penis or its distance from Mrs. T.'s face.

[54] Similarly, it is difficult to understand, objectively, how Mr. Measho, viewing Mr. Brown from behind both in the mirror through the crack in the door and then through the open doorway, could have actually seen Mr. Brown's penis or been in a position to see whether his genitals had come into contact with Mrs. T.'s face. Since the back of the toilet, contrary to the police diagram, was flush against the wall separating the bathroom from the hallway and perpendicular to the wall to the left of the toilet where the bathroom door was located, it is very hard to envisage a line of sight either in the mirror from the crack in the door on its hinged side or directly from the opened door that would not involve the accused's buttocks essentially concealing his front and Mrs. T.'s head. I am not overlooking Mrs. Reyes's evidence that she looked through the crack directly at the accused and that she could see Mrs. T.'s face within about three inches of his genital area, implying that both were visible to her. It may be that the crack in the door was wide enough that she could have seen things from a different angle than Mr. Measho looking at the mirror, but neither the photographs nor the diagram permits a firm conclusion concerning that possibility.

[55] On a different point that likewise raises some doubt concerning the reliability of Mr. Measho's testimony concerning particular details, it might be noted that Mr. Brown's evidence concerning his repeatedly placing Mrs. T.'s hands on his hips, whether or not for the purpose of keeping them out of the toilet as he claimed, was nonetheless confirmed by Mrs. Reyes' evidence that she herself had observed that movement by the accused of Mrs. T.'s hands. Although Mr. Measho was apparently making observations at the same time and from the same approximate position as Mrs. Reyes, he made no reference to having seen that himself, although it certainly seems likely that it actually happened.

[56] In the circumstances, I am unable to say that Mr. Measho's evidence that he saw the accused's penis touching Mrs. T. is sufficient to prove that allegation beyond a reasonable doubt. I would not rule it out as a possibility, but that is, of course, very different from concluding beyond a reasonable doubt that it in fact occurred. Because I am unable to reject Mr. Brown's denial of that aspect of the interaction out of hand, it follows that the Crown has failed to prove the particularized offence beyond a reasonable doubt. Mr. Brown is entitled to an acquittal on Count 2. Since the Crown has failed to prove the actus reus of the sexual exploitation offence as particularized, it is not necessary to consider whether the Crown proved Mr. Brown's "sexual purpose" beyond a reasonable doubt.

[57] With respect to Count 1, the sexual assault charge, I have little difficulty finding that there was an intentional application of force by Mr. Brown to the body of Mrs. T., even on the accused's evidence, and that it can only be regarded as sexual in nature. I am inclined to accept Mr. Brown's evidence that he had not sought an excuse to be alone with Mrs. T. and that he had not planned an encounter of the kind that occurred. It was clear that the doors both from the hallway into the bedroom and then into the bathroom had been left open, and the accused was aware that Mr. Measho or perhaps the rehabilitative worker could come to Mrs. T.'s room unannounced at any time. It also seems to me, as Mr. Hogan appeared to concede in his very fair submissions, that none of the Crown's evidence can be regarded as contradicting Mr. Brown's version as to how he came to be in what he himself admitted was a completely inappropriate situation involving, as it did, a PCA with his pants down caring for a naked elderly woman sitting on a toilet, with his crotch area, barely covered or not by the bottom of his shirt, within inches of the patient's face. What made it so inappropriate, presumably even by the accused's estimation, was the obviously sexual character of the interaction that occurred.

[58] The explanation that it was a game that got out of control, regardless of the words actually spoken by Mr. Brown when asked why it had happened, does not permit a conclusion, in my view, that there was anything other than a sexual context to the accused's conduct. Considering the factors that the Supreme Court in Chase suggested would be relevant to determining whether, objectively, the impugned acts were of a sexual nature, there can be little doubt that the inevitable touching of body parts that occurs when a caregiver is responsible for washing or bathing a patient alters its character completely when the caregiver allows himself to be undressed and then continues to perform the task naked from the waist down. Mr. Brown's explanation that he was concentrating on Mrs. T.'s bowel movement and preventing her from soiling her hands, rather than the state of his own clothing, is not only inherently implausible, but makes little sense when he could have easily pulled his pants up in an instant, probably instinctively, one would have thought, and proceeded with his responsibilities in a professional manner. Even if one were to accept the accused's version of the event, it is impossible to conclude that there was no violation of Mrs. T.'s dignity and sexual integrity, which she was as entitled as any other person to have respected, when Mr. Brown moved his bare genital area close to her face while grabbing her hands and placing them on his hips.

[59] It seems to me that the closest reported case, although not specifically cited by counsel, is the judgment of the Quebec Court of Appeal in R. v. Bernier (1997), 119 C.C.C. (3d) 467; aff'd, 124 C.C.C. (3d) 383 (S.C.C.). In that case the accused was a nurse's aide in a facility that housed psychiatric patients. The evidence established that the accused, thinking it was some kind of joke, touched the breasts or testicles of patients and had another pull down his pants. He was described as a jovial former boxer who was well-liked by the residents. Although the trial judge conveyed his disapproval of the accused's conduct that he considered immature and disrespectful, he acquitted him on the basis that the impugned touching lacked the element of hostility necessary for an assault and that the evidence was insufficient to establish the lack of consent on the part of the patients who had been touched in that manner. In reversing the acquittals and entering convictions, Deschamps J.A., as she then was, observed, at p. 472, that the Supreme Court had formulated in Chase, supra, a broad definition of sexual assault. She stated that an intentional touching was all that was required to make out an assault, and that it need not be of a "hostile" nature. At pp. 475-6, she stated:

As in the case of the former offences of rape and indecent assault, for reasons of social policy, in order to avoid having the objective of the new provision not met, the Supreme Court, in Chase, said that it was of the view that the crime of sexual assault only required general intent. In addition, it is sufficient that the accused knowingly touched in a sexual manner, knowing that the victim did not consent to it or was not able to given a valid consent.

As the evidence of the aggressor's desire for sexual gratification is not an essential element of the offence, to require proof of sexual motivation has the effect of transforming the offence of sexual assault into a specific intent offence. Whether the aggressor's motivation is a desire for sexual pleasure, a desire to inflict suffering on another person, to humiliate or to ridicule the victim, does not at all change the criminal nature of his conduct.

The trial judge, where he has evidence of the commission of the offence, does not have a discretion which would allow him to acquit the respondent on the ground that the actions are anodynes or were only done as a joke. The degree of seriousness of the actions only becomes relevant on sentencing.

As already noted, the convictions entered by the Court of Appeal were later affirmed by the Supreme Court of Canada.

[60] I see no reason to characterize what Mr. Brown regarded as a "game" in a way that differs from the ruling made by the appellate courts in Bernier. The sexual nature of the physical contact between Mr. Brown and Mrs. T. on this occasion would be readily apparent to any objective observer. In my opinion, the Crown here has proved all of the essential elements of the sexual assault charged in Count 1, and a finding of guilt is required.

Disposition

[61] Mr. Brown is acquitted on Counts 2, 5 and 6, but a conviction is entered with respect to the sexual assault on Mrs. T. charged in Count 1.

Released: April 9, 2013

Signed: "Justice David A. Fairgrieve"