WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 22, 2013

Court File No.: Halton 11-3862

Between:

Her Majesty the Queen

— and —

R.L.

Before: Justice L.M. Baldwin

Heard on: September 20, 2012, October 16, 2012, December 5, 2012, and April 30, 2013

Reasons for Judgment released: August 22, 2013

Counsel:

• E. O'Marra and H. Apel, counsel for the Crown
• P. Stunt, counsel for the accused R.L.

BALDWIN J.:

Overview

[1] R.L. pled not guilty to 3 counts of sexually assaulting A.V.I. (the complainant) at the Town of Oakville on or about December 1st, 2011, contrary to section 271 of the Criminal Code.

[2] The allegations involve sexual assaults by R.L. (dob […], 1951) against his 29-year-old female employee at the workplace located K[…] Street in Oakville.

[3] The complainant testified with CCTV accommodation and a neutral support person after a lengthy voir dire pursuant to sections 486.1 and 486.2 of the Criminal Code. It was established that she has a learning disability that requires her to be supported in the community. She was hired by R.L. on November 15th of 2010. R.L. knew when he hired her that she had a learning disability. (Tr. December 5, 2012 p. 68 and Oct. 16, 2012 Tr. p. 11)

[4] The complainant had been placed with his company, called O[…], by STRIDE (Supported Training and Rehabilitation in Diverse Environments), a program that offers employment support to individuals who are on Disability Benefits for mental health issues or learning disabilities. The complainant was on ODSP (Ontario Disability Support Program) benefits for learning disabilities.

[5] The part-time job involved basic work that the complainant could handle. It involved assembling kits of supplement products that R.L.'s company distributed. In addition to R.L. and the complainant, the only other part-time employee was R.L.'s female "life partner".

[6] The complainant's last day of work was the day the allegations arose – December 1st, 2011. The complainant left work that day and made disclosures to others. This resulted in the police being contacted and her father leaving a message for R.L. that A.V.I. would not be returning to work.

[7] A formal videotaped statement was provided to the police on December 8th, 2011.

The Complainant's Learning Disability

[8] The complainant's mother testified that her daughter was diagnosed at age four with a learning disability; speech and language based.

[9] Starting in pre-school, the complainant has received special supports in the education system.

[10] These supports continued right through to the completion of a basic level high school program. The complainant completed that program when she was 21 years of age.

[11] The complainant then completed a one-year upgrading program at N[…] College where she also received special support due to her learning disabilities.

[12] This was followed by a 3- to 4-month program at M[…] College where, with special educational support, the complainant was able to obtain a diploma as a Personal Support Worker.

[13] The complainant has trouble focusing on more than one thing at a time. She is easily distracted by noises. She gets over-wrought if she perceives a disturbance in her environment. She cries easily and suffers panic attacks. She is also claustrophobic.

[14] The complainant resides with her mother and father and she has always been financially dependent on them.

[15] The complainant receives ODSP benefits and, with the assistance of the STRIDE Program, she tries to be gainfully employed.

[16] The complainant has the support of her family and some friends from school and those she has met through her involvement with the Special Olympics.

Employer/Employee Relationship

[17] The complainant began working as a part-time Office Assistant on November 15, 2010 for R.L.

[18] The job was obtained with the assistance of the STRIDE program and her employment worker from this program, Nancy Shoemaker, testified during the course of this trial.

[19] The complainant worked Tuesdays and Thursdays from 10:00 a.m. to 4:00 p.m. and she was paid $10.50 per hour. The complainant's Profile/Resume and the job offer were filed as Exhibits during the trial.

[20] The complainant's job involved putting labels on products and assembling the supplement kits. She did not answer the phone because it made her too nervous.

[21] When the complainant worked at the office, only R.L. would be present.

[22] He would sit and work at his desk, and the complainant would work in the same open-space room at her desk. The desks were about approximately 4 feet apart from each other and they would sit with their backs facing each other.

[23] The complainant described her job as "awesome" and the best job she ever had.

[24] "…he was an awesome boss…if you make a mistake he doesn't get mad…he just would explain – he understood my learning disability, so he understood how to talk – like maybe explain how to do something more than once… he pretty much understood me and didn't fire me just 'cause I made one mistake." (Video Transcript Exhibit pp. 28, 29)

[25] She had a good relationship with R.L. up until the day of the allegations which was the day that she quit this job.

Description of the Workplace

[26] The Defence filed photographs of the inside and the outside of the workplace - Exhibits 4(a) through (h).

[27] The complainant agreed that there are glass windows which permit people on the sidewalk to look into the space.

[28] There are wooden stairs leading down to the storage basement area. The room is dark, has no windows, and is lit by two light bulbs that hang from the ceiling.

Summary of Complainant's Evidence

Examination in-Chief

[29] The complainant adopted as true the videotaped statement she gave to the police on December 8th, 2011. The transcript and DVD of this statement were marked as Exhibits pursuant to the provisions of section 715.2(1) of the Criminal Code.

Incident #1

[30] The complainant testified that on December 1st, 2011, she walked into work as usual and signed in at ten o'clock.

[31] "R.L. said, oh, it's been a year and a bit and gave me a hug. But the hug was like really long and slow – it's not like him to do that, 'cause he never hugs me. So I didn't think about it and I went to work 'cause I knew what I had to do…" (Video transcript p. 10)

[32] At approximately 11 a.m., he leaned over and started talking to her and then he put his hand down her shirt and was kissing her. She kept trying to work. He went back to his desk.

[33] Giving more detail, the complainant stated that this incident began when R.L. was in his chair behind hers. He was talking about something and joking around. She did not know what he was talking about and wanted to get her work done. The complainant testified that R.L. said something about being bored and that it was quiet at work. (p. 79)

[34] He came over to her and put his right hand under her shirt. She was wearing a shirt with a zipper, a tank top underneath and a bra.

[35] He "swooped" his hand in under all the clothing and put his hand on her left breast on the nipple part. (p. 37) He was rubbing her breast for less than a minute. (p. 41)

[36] She did not say anything. He went back to work.

[37] She kept working and hoped he would not do it again. (p. 33)

[38] She did not consent to R.L. touching her. R.L. did not ask for her consent before he touched her. (Transcript Dec. 5, 2012 p. 4)

Incident #2

[39] At approximately noon he came back and did it again. He started kissing her as she was working.

[40] She kissed him back because "she didn't know what to do". (Tr. p. 5)

[41] That lasted for a few seconds and then R.L. stopped to answer the phone.

[42] She left for her lunch break and received an E-mail on her Facebook from a friend of hers named J.M. She disclosed to J.M. that her boss had touched her at work.

Incident #3

[43] After her lunch break, she went back to the workplace and back to her work as usual. At approximately 2:30 p.m., she had to go down into the basement to get something for her work as the products were kept down there.

[44] The accused followed her down there. He undid her shirt, pulled down her other shirt, kissed her left breast and then stopped.

[45] She did not consent to him touching her. He did not ask for her consent to touch her.

[46] Neither of them said anything. She felt scared. (p. 56)

[47] She left work at 4:00 pm with a smile on her face. She did not want him to think that anything was wrong. (p. 58)

[48] J.M. and S.A. were there to pick her up as arranged by J.M.'s phone call to her at the work place. (p. 59)

[49] She got into their car and "flipped out". (p. 58). She started crying and called herself an idiot because she should have said something to R.L.

[50] J.M. and S.A. drove her home and she told her mother what had occurred.

Contact after Thursday December 1st, 2011

[51] The next day, Friday December 2nd, 2011 at 2:40 p.m., R.L. sent her a message on her BlackBerry asking her if she wanted to hang out with him after his badminton game that night that ended at 10:30 p.m. (p. 68)

[52] On Saturday December 3rd, 2011 at 12:01 p.m., she got another message from R.L. that read "BFF ?", which the complainant took to stand for "Best Friends Forever?". (p. 68)

[53] That same day at 4:07 p.m., R.L. sent a second message that said "what's up doc?" – with a smiley face symbol.

[54] The complainant testified that R.L. has never texted her before unless it had to do with work. If he needed to discuss a change in her work hours, he would call her on her cell phone. (p. 70)

[55] The complainant testified that she did not socialize with R.L. outside of work.

[56] The complainant did not respond to the December 2nd and December 3rd text messages.

[57] On Monday evening, December 5th, 2011, the complainant's father called R.L.'s workplace and left a message stating that she would no longer be coming into work.

Cross-Examination

[58] The complainant denied that on November 29, 2012 she had asked R.L. to put his hand into the pocket of her sweatshirt at the workplace.

[59] The complainant testified that all incidents of touching happened on her last day of work.

[60] R.L. told her that day that he liked her which she took to mean as an employee.

[61] She told him that she liked him too – which she meant as her boss. (p. 18)

[62] The complainant maintained that R.L. hugged her as soon as she came into work that day. (p. 41)

[63] She denied that there had been any prior hugging before the day in question.

Incident #1

[64] The complainant did not agree that R.L. gently squeezed her hand and she squeezed his back before the kissing and touching began. (pp. 51)

[65] The complainant maintained that R.L. touched her breast under her clothing. (pp. 21, 22, 52)

[66] When asked to describe what kind of kiss was exchanged, she replied "I guess we, like, like, I guess a, a romantic kiss, I guess." (Tr. p. 21)

[67] The complainant testified that she didn't say anything because she was shocked.

Incident #2

[68] The complainant denied that after the first incident she unzipped her sweatshirt and revealed some cleavage. She testified that she would never do that at her workplace.

[69] The complainant denied that R.L. asked if he could touch her and she nodded her head up and down. (p. 53)

[70] "And he comes back and talks to me again, but I'm, we're laughing and then he does it again, and then well, I'm still working so I'm like he said something, but I'm not understanding what he said…When I get nervous I'd start laughing, and if I don't understand something, I tend to start laughing…I can't help it, it's a nervous habit I guess". (p. 35)

[71] The kissing was the same as the first time. It lasted for just seconds and was "romantic" like the first one. (p. 36)

[72] The complainant repeated that R.L. did not ask for her consent to kiss or touch her. (Tr. p. 36)

[73] She denied the suggestion that R.L. asked to look at her breasts and she said no, but he could touch them. (p. 37, 54)

[74] She may have told R.L. his hand was cold when he was touching her breast. (p. 54)

Incident #3

[75] The complainant testified that the reason she went back to work after lunch was because she thought maybe he would apologize and it would be enough. (p. 30)

[76] The complainant maintained that R.L. came downstairs after she went into the basement for supplies in the afternoon and that he touched her again. (pp. 50, 51)

[77] She agreed that when she left work that day she was smiling and appeared to be in 'good spirits'. She explained that she wanted R.L. to think that everything was fine. She did not want him to know that she was upset. (p. 55)

[78] When her friend picked her up in the car she "totally freaked out". (Tr. p. 37)

Summary of the Testimony of J.M. and S.A.

[79] J.M. is 48 years of age and lives with her partner S.A. She has known the complainant for approximately 5 years.

[80] J.M. used to work for M[…] and cleaned the home of the complainant's parents.

[81] J.M. has a 16-year-old daughter who has special needs and she and the complainant would socialize at times.

[82] J.M. contacted the complainant via Facebook on December 1st, 2011 to tell her that her daughter was back from vacation.

[83] The complainant responded and disclosed what was happening to her at work. J.M. told her not to go back to work. J.M. told her that she and S.A. would pick her up at 4:00 p.m. J.M. did not know prior to this date where the complainant worked or who her boss was.

[84] J.M. and S.A. left their house as soon as they could.

[85] The complainant came out of the workplace and was shaking. In the car, she was crying and pulling her hair out. J.M. testified that she has never seen the complainant pull her hair before that day.

[86] They drove the complainant to her parent's house.

[87] S.A. also testified that the complainant was very upset on the drive home. She was crying, shaking, inconsolable and yelling a bit.

Summary of the Testimony of R.L.

Examination in-Chief

[88] R.L. testified that he was born […], 1951 in Malaysia. He has no criminal record.

[89] He was qualified as a chartered accountant in England and Wales in 1976.

[90] He came to Canada in 2000 when he was 49 years of age for business reasons.

[91] He has a 'life partner' named Marie. They have been together for the past nine years and have no children.

[92] He manages a store that distributes and sells health supplements and testing kits.

[93] The business has been located K[…] Street in Oakville for the past 3 years.

[94] R.L. described the work space. He and the complainant both had desks that were 7 to 10 feet apart. Both of them had chairs with wheels.

[95] Other than the complainant, only his partner Marie has worked in the business.

[96] Marie worked Mondays, Wednesdays and Fridays – the days that the complainant did not work.

[97] When he hired the complainant "I was told that she had some learning difficulties, but because the work did not involve a lot of mental tasks, it's just manual work, I thought I'd give her a chance." (p. 68)

[98] The complainant was a good employee. "She works hard, she's punctual and she tries her best". (p. 66)

[99] Her duties were to put together the components of the kits. She would get the supplies from the basement and do the assembly at her desk.

[100] R.L. testified that there was a text exchange with the complainant to remind her to watch a certain TV show. Other texts between them were related to work.

[101] In October he took a trip to Asia and there was a text exchange about when the complainant could return to work.

[102] "In one of them she said 'I missed you'…I sort of ignored that what she said there and just say 'It's better if you can start on the Tuesday…" (p. 72)

November 29th, 2011

[103] R.L. testified that sometime mid-morning on that day, he and the complainant were joking about the pockets in her sweatshirt. "She then lifted up the left pocket with her left hand, inviting me to put my hand into it…I put my hand and was surprised it went right round her body, and in the process, I touched her breast". (pp. 72, 73, 74)

[104] "And later, I put my hand on the other side and she let me". (p. 73)

[105] R.L. testified that his hand touched her stomach area and the lower part of the complainant's breast. "I was just curious, and I was surprised it went round the body, and in the process I felt the body and the breast". (p. 75)

[106] The complainant did not say anything. "She seems happy and comfortable". (p. 75)

December 1st, 2011

[107] "She came in at ten as usual. I did not give her a hug. She sat down to work. After about half an hour, I pulled my chair next to her on her right side, and her right hand was on the table, and with my right hand, I held her hand and squeezed it gently…She squeezed me back gently too". (p. 75)

[108] No words were exchanged.

[109] "I then look her in the eye and lean forward to kiss her. She looked back at me with a faint smile, and kissed me back". (p. 76) "My right hand went across the top of her breast on the outside" of her clothing. (p. 77)

[110] Again no words were exchanged. He went to answer the phone at his desk and then came back to the complainant's desk.

[111] The complainant was wearing a pink sweatshirt-hoodie. It was zipped up "so I don't know what was underneath". (p. 76)

[112] "Later, she unzipped it. She was wearing a white T-shirt that is very low cut, and then you could see the cleavage and the bra that she was wearing". (p. 76)

[113] "…I came back…I put my left hand on her shoulder and neck, and I leaned towards her and I said 'I like you' and she responded 'I like you a lot' because she put her arm around me, and we were both very close, face-to-face, almost cheek-to-cheek". (p. 78)

[114] He saw that her zipper was undone so he asked if he could touch her, and she nodded up and down. (p. 78) He took that to mean that he could touch her. He put his right hand into her bra and touched her for 5 to 10 seconds.

[115] His other hand was on the desk.

[116] The complainant did not say or do anything.

[117] "After that, I went back to work because some e-mails came in and I went to answer the e-mails. About half an hour later, I came back and stood on her left side…And I ask her, 'May I see?' meaning, may I see your breasts…She looked up at me and say 'No, you cannot see, but you can touch…I then put my left hand and touched her right breast…After I withdrew my hand, she looked up at me in a faint smile and said 'Your hands are cold'". (p. 80)

[118] R.L. testified that the complainant's demeanour looked normal to him.

[119] She left for her lunch break as usual about one o'clock.

[120] She looked the same when she came back from lunch.

[121] R.L. denied going into the basement in the afternoon. He denied that there was any further touching of the complainant in the afternoon.

[122] On December 2nd, he texted the complainant and asked her if she wanted to hang out after his badminton game. His purpose in doing so was stated as follows: "I was concerned. I just wanted to make sure she's okay…After the incident, I just thought she may change her mind and get upset". (p. 84)

[123] Because the complainant did not respond to this text, he sent her another one asking if they were best friends forever. His stated reason for doing so was "to make sure it's okay". (p. 84)

[124] He sent her a third text saying "What's up doc?" R.L. testified that he sent that for the same reason. She was not responding.

[125] After that he sent her another text with two question marks.

[126] R.L. testified that he was interviewed by police in this matter on December 9th.

[127] The Christmas card he later sent to the complainant was simply because she had been an employee of the business.

Cross-Examination

November 29th, 2011

[128] R.L. testified that he was curious about where the pocket on the complainant's sweatshirt went. He did it because he was invited to. She pulled out the pocket. The pocket was nowhere near her breast. His intention was not to touch her breast. His hand went upwards and just touched it. R.L. stated that his hand went up and just accidentally touched her breast. He agreed that there was no intentional sexual contact between the two of them on November 29th.

December 1st, 2011

[129] R.L. denied that he hugged her when she came into work.

[130] He put his hand on the complainant's hand and squeezed it as a "friendly gesture". (p. 104)

[131] When she squeezed his hand back, he took it to mean that she wanted something so he leaned in and kissed her.

[132] When asked by the Crown Attorney why he would initiate this sexual contact, R.L. replied as follows "On Tuesday, when I put my hand in and felt her breast, it just made me curious…Just curious about her body…Well, because I brushed the breast, I just felt curious…I can't explain it, just curious". (pp. 104, 105)

[133] R.L. was asked why he did not ask the complainant if he could kiss her before he did that. R.L. replied: "First I look her in the eye and she smiled, and then I just lean forward and kiss her…I can't explain. It's just an emotion". (p. 105)

[134] R.L. stated that it may have been inappropriate to kiss the complainant to see how she would respond.

[135] R.L. agreed that the complainant's clothing had nothing to do with her consenting to being touched by him. But then he stated that when the complainant's zipper was down, he took that to be a "suggestive message" being sent to him. "That she maybe wanted me to touch her". (p. 107)

[136] R.L. testified that he then asked the complainant if he could touch her. He did not say where – he just assumed they were talking about her breasts.

[137] R.L. testified that he was curious about what her breasts would feel like.

[138] The complainant nodded her head up and down and he took that as consent to touch her breast. So he put his hand right into her bra and touched her breast and nipple for five seconds. The phone rang and he stopped to answer the phone.

[139] When he came back the second time the complainant's zipper was still undone. (p. 109) R.L. took that to mean that the complainant did not object to him touching her. "If she had objected in the first place, she would have pulled up the zipper". (p. 111)

[140] He stood beside her and kissed her on the neck. He asked her 'can I see?' He wanted to see her breast.

[141] R.L. testified that he had touched the left breast before and now he wanted to touch the right breast. He repeated that he was just curious. (p. 112)

[142] (Crown) Q. What makes you think that you have a right to ask your employee to see her breasts, just because you have some curiosity?

[143] (R.L.) A. I know it's not appropriate, but it was just an emotion – a loss of control.

[144] R.L. testified that he touched her breast under the bra for a few seconds then he withdrew.

[145] R.L. denied being in the basement with the complainant that afternoon.

[146] He agreed that the complainant did go down there. He did not pursue anything further because his "curiosity had been satisfied". (p. 114)

[147] R.L. testified that later in the day after she was gone, he was a "bit unhappy. I thought I shouldn't have done that…It's not appropriate. It dawned on me that, you know, it's not illegal, but it's not appropriate". (p. 114)

[148] R.L. testified that he texted the complainant to meet him the next evening because he wanted to see if she was okay.

[149] "I was concerned, and I did not mean to sexually assault her. I was concerned that, you know, I was uncomfortable with the situation". (p. 115)

[150] R.L. testified that if the complainant had objected, she could have pushed him away and people walking by on the street would have seen it; or she could have told passers-by.

[151] Despite the fact that people could look into the office front windows, R.L. testified that he thought it was okay to touch the complainant's breasts because she agreed to it.

Position of the Parties

Defence

[152] The defence advances both consent for the first 2 incidents (Dec. 5/12 Tr. p. 12) and the defence of a mistaken belief in consent (Final Submissions April 30, 2013), and there is a denial with respect to the 3rd incident in the basement.

[153] In Final Submissions, defence counsel asked the Court to consider the complainant's testimony as follows:

(1) when R.L. kissed her, she kissed him back;

(2) when R.L. said he liked her, she said she liked him back;

(3) she possibly lowered the zipper on her sweatshirt and may have said his hand was cold when he touched her breast;

(4) she left for lunch appearing to be in good spirits;

(5) she left work for the day appearing to be in good spirits.

[154] The defence suggests that it makes no sense that if the complainant was sexually assaulted as she claims in the morning, that she would return to work and put herself in the vulnerable position of being alone in the workplace with just R.L. present in the afternoon.

[155] Defence counsel asked the Court to consider R.L.'s testimony as follows:

(1) the office had glass windows which would permit people on the side-walk to see in;

(2) the complainant invited him to put his hand inside the pocket of her sweatshirt;

(3) he squeezed her hand and she squeezed his hand in return;

(4) she lowered the zipper on her sweatshirt;

(5) he could see part of her bra and some cleavage of her breasts which he took as an invitation to touch;

(6) when he kissed her he had a hand on her breast;

(7) he put a hand on her neck;

(8) they both said they liked each other;

(9) he asked if he could touch her and she nodded her head as in 'yes';

(10) later he asked if he could see her breast and she said no but he could touch it;

(11) her demeanour appeared pleasant throughout;

(12) she never said words that communicated a lack of consent;

(13) she was capable of saying no or yes to sexual activity.

[156] The Defence submits that based on her demeanour, her gestures and her comments to R.L., that there is an air of reality to the defence of mistaken belief in consent and R.L. should be acquitted on all 3 counts.

Crown

[157] The Crown submits that there is no relevance whatsoever to the fact that the complainant may have lowered the zipper on her sweatshirt. The Crown submits that this does not constitute an invitation to sexual touching and is a forbidden 'rape myth' as set out by the Supreme Court of Canada in the seminal case of R. v. Ewanchuk, [1999] 1 SCR 330.

[158] The Crown submits that this was an Employer/Employee relationship; the accused was 30 years older than the complainant; the complainant had a learning disability that the accused was aware of having been placed in his employ with the assistance of the STRIDE program worker.

[159] The Crown submits that on R.L.'s testimony alone, offences of sexual assault have been established.

[160] The Crown points to R.L.'s testimony that he thought there was some significance to her reply in a text about returning to work after his Asia trip that she said she missed him. She was talking about missing him as a boss and nothing more.

[161] The Crown submits that there was nothing to be read into the fact that she befriended his company on her Facebook.

[162] The complainant and the accused in this case had no social relationships outside of the work place.

[163] The Crown submits that R.L. agreed in cross-examination that there was nothing that indicated she consented to sexual touching before he put his hand into the pocket of her sweatshirt and then brushed his hand upward and touched her breast. In cross-examination R.L. testified that he touched her breast accidentally the first time. There is no air of reality to the defence of mistaken belief in consent based on his evidence with respect to the first incident.

[164] The Crown submits that the hand squeezing was not an invitation to touch her sexually. Based on R.L.'s evidence alone, he took this as her agreement that he could kiss her. He testified he kissed her to see how she would respond. This is not a case of mistaken belief in consent.

[165] The Crown submits that the fact that the complainant in this case did not say no, stop, did not yell or scream is explained by her testimony that she was in shock. The complainant has testified that she did not know at times what R.L. was talking about. She remembers laughing because she was nervous. R.L. did not testify as to any laughing. Laughing does not equate to an invitation to sexual touching.

[166] The Crown asks the Court to reject R.L.'s testimony that he asked if he could touch her body and she responded by nodding her head up and down.

[167] The Crown asks the Court to reject R.L.'s testimony that she told him he could touch, but not look at, her breast.

[168] The Crown asks the Court to consider her disclosure to J.M. over Facebook during her lunch break. The Crown asks the Court to consider the complainant's distraught emotional state immediately upon being picked up from the workplace. The Crown asks the Court to consider that the complainant's disclosures resulted in her quitting the job she had loved doing.

[169] The Crown submits that after assessing the evidence according to R. v. WD, the Court should reject R.L.'s evidence where it conflicts with the complainant's, and be satisfied beyond a reasonable doubt of his guilt.

[170] The Crown submits that R.L.'s own testimony in cross-examination that "he lost control" that day, is the truth of what happened between the parties. His efforts to communicate with A.V.I. thereafter was his concerned attempt to have her be okay with that fact.

The Law

Re: Assault

[171] Section 265(1) of the Criminal Code:

A person commits an assault when:

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that person to believe upon reasonable grounds that he has, present ability to effect his purpose;

(2) This section applies to all forms of assault, including sexual assault…

(3) For purposes of this section, no consent is obtained where the complainant submits or does not resist by reasons of

(a) the application of force to the complainant…

(b) threats or fear of the application of force to the complainant…

(d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

[172] Sexual Assault is an assault, within any one of the definitions of that concept in section 265(1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The test is an objective one. R. v. Chase, [1987] 2 S.C.R. 293; 37 C.C.C. (3d) 97.

Re: Consent

[173] Section 273.1(1) of the Criminal Code:

…."consent" means, for the purposes of section 271…the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of section 271 …where,

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.

[174] Section 273.2 of the Criminal Code:

It is not a defence to a charge under section 271 …that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Findings of Fact

[175] I find as a fact that R.L. was in a position of trust, power or authority to the complainant in this case and reference the decision of R. v. Aird (June 27), 2013 ONCA 447 wherein the meaning of these same words are discussed in relation to offences charged under section 153(1) of the Criminal Code. (Also see section 153.1(1) through (6) where all the same legal principles apply – 'Sexual Exploitation of Person With Disability')

[176] There was a clear power imbalance in the relationship between the complainant and R.L.

[177] He was her employer and he could exercise control over her in the workplace. He could direct her actions, correct her if she made a mistake and ultimately decide if her employment could continue.

[178] The complainant in this case was a vulnerable young woman with disabilities. She had been placed into the employment relationship with R.L. through the STRIDE program and he was well aware of her special needs and limitations which included difficulties in communication.

[179] The complainant came to trust R.L. and viewed him as a wonderful boss who was patient with her at the workplace.

[180] In addition to being in a position of power and authority over the complainant, in the circumstances of this case, R.L. was also in a position of trust as the complainant came to rely on him as an employer who would accommodate her special needs in the workplace.

[181] It is significant as well that R.L. was an educated businessman who was 30 years senior to the complainant who functioned much below her physical years in social interaction and communication skills.

[182] For these reasons the defence of consent does not apply to this case pursuant to the provisions of section 273.1(2)(c) of the Criminal Code.

[183] I find as fact that there is no air of reality to a defence of mistaken belief in consent given the factors noted above.

[184] Section 273.2(a) and (b) of the Criminal Code preclude this defence from applying where the accused's belief in consent arose from his recklessness, wilful blindness or failure to take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting.

[185] R.L. was beyond reckless, willfully blind, and took no reasonable steps in this case to ascertain that the complainant was consenting.

[186] I find as a fact that the complainant's sexual integrity was violated and that the acts complained of here constitute sexual assaults. Neither the defence of consent, nor a defence of mistaken belief in consent apply in the circumstances of this case.

[187] I find as a fact that R.L. lost control on the day in question and acted upon his stated "curiosity" to prey upon this vulnerable complainant in the workplace.

[188] Where the evidence of the complainant differs from the evidence of R.L., I accept as accurate, reliable and true the evidence of the complainant. She was consistent throughout. She did not try to embellish her evidence in any way. I accept her evidence that she did not by any words or gestures communicate consent to any sexual activity with R.L., her boss on December 1st, 2011 or any other day.

[189] Even if the defence of consent was available in this case, as I have found it is not, I agree with the Crown's submissions and find as a fact that R.L. has fabricated little head nods, lowered zippers, and spoken words, to self-justify his behaviour in this case. His behaviour was not only inappropriate as he has acknowledged. It is criminal.

[190] I find R.L. guilty of sexually assaulting the complainant in this case by committing the following acts:

(1) giving her a long hug when she entered the workplace;

(2) putting his right hand down her shirt and touching her breast in the workplace;

(3) kissing her and again putting his hand in her shirt and touching the other breast in the workplace;

(4) unzipping the zipper of her sweatshirt, lifting up her T-shirt and kissing her left breast in the workplace.

[191] I accept as accurate, reliable and true, that during the above incidents A.V.I. was in shock and was afraid. She said nothing and she did nothing. This is consistent with her internal emotional state. She was treated like prey and she 'froze'. This reaction is understandable and believable.

[192] I have applied the 3 pronged test established by the Supreme Court of Canada in assessing all the evidence in this case and I have not shifted the onus of proof to the accused.

[193] The Crown has established the offences of sexual assault, both the required mens rea and the actus reus, beyond a reasonable doubt. The tests as set out in the R. v. Ewanchuk case have been applied.

Decision

[194] Findings of guilt are registered on 3 counts of sexual assault.

Sufficiency of Reasons for Judgment

[195] During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin 2013 SCC 38, R. v. S. (T.), [2012] ONCA 289, R. v. H. (J.M.), 2011 SCC 45, R. v. Drabinsky, [2011] 107 O.R. 93, R. v. Dinardo, 2008 SCC 24, R. v. R.E.M., 2008 SCC 51, R. v. Walker, 2008 SCC 34, R. v. Gagnon, 2006 SCC 17, R. v. Braich, 2002 SCC 27, R. v. Sheppard, 2002 SCC 26.

Released: August 22, 2013

Signed: "Justice L.M. Baldwin"