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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2015-01-23

Court File No.: Regional Municipality of Durham 998 13 13680

Between:

Her Majesty the Queen

— AND —

Wesley Putnam

Before: Justice J. De Filippis

Heard on: October 29-30 & November 25, 2014

Reasons for Judgment released on: January 23, 2015

Counsel:

• Ms K. Kennedy — counsel for the Crown
• Mr. S. Fraser — for the defendant

Reasons for Judgment

De Filippis, J.:

[1] The Charge and Background

The defendant is charged with sexually assaulting the complainant on 19 July 2013. At the time of these events, the parties worked together at a restaurant and the offence is said to have occurred in the kitchen area. He was 27 years old and employed full time as a cook. She was 17 years old and worked part time as a dishwasher and cashier. I heard from six witnesses, including the complainant and defendant.

[2] The Restaurant Layout and Workplace

The complainant began working at a family run restaurant in Oshawa in June 2013. At the time in question, it was owned by S.C.1. He ran it with the help of his wife and daughter. The defendant was one of two cooks and supervised the complainant. The enclosed kitchen is "U shaped"; it had fryers on one side and a salad, pasta, and desert preparation area on the other. The dish pit was along a wall at the bottom of the "U", connecting the two cooking areas that were otherwise separated by a floor to ceiling wall. To proceed from one area to the other, one had to walk to the dish pit and cross over to the other side. A takeout area, dining table, and cash register was located, through an opening, on the fryer side. The public could see into the kitchen through the opening. The main dining room was on the salad side, connected by a door. The defendant was responsible for the fryers. The other cook, K.H., worked at the salad, pasta, and desert counter. The complainant was usually at the dish pit. She also served, as needed, at the take out counter/cash register and it is here that she claims to have been sexually assaulted.

[3] Initial Interactions and Escalating Conduct

The complainant testified that her initial dealings with the defendant were fine – "mostly small talk" – but in the weeks between her start of work and the incident in question, "he became more flirtatious". She said he once told her she had "a nice butt" and then "every time" he walked past her he would "grab my butt or touch it". The complainant explained that she did not think much of this conduct as the "space is small and people were always brushing up against each other".

[4] The Alleged Assault on July 19, 2013

On Friday July 19, the complainant reported to work for her "normal shift at around 3 PM". She testified that "things were bad with [the defendant] that night": He asked her why she had said nothing "when I grabbed your butt". The complainant "froze" and remained silent. According to her he did not stop: "Every time I went to the take out side he'd do that and rub his groin up against me". She testified he later approached her from behind and pressed his groin against her buttocks, while one hand rubbed her vaginal area and then her breast (over her clothing). While doing so, the defendant said, "I want to be inside you…have you ever been with an older man? I can make that happen". The complainant testified that this "felt really long but probably lasted not even five minutes". She added that this happened in the take out area when there were no customers present and the other cook was "on his side of the kitchen". The complainant walked away and said nothing to the defendant.

[5] Reporting the Incident

The complainant stated she "felt terrified" by the defendant's actions but feared "causing a scene" and losing her job. At the end of her shift, she "talked" to S.C.2, the restaurant owner's daughter so that "this didn't ever happen again". Ms S.C.2 took the complainant to her father. The complainant testified that she was visibly "crying" as she spoke to them about the incidents. She added that when she said she would tell her mother and the police, Mr. S.C.1 replied that it would "be bad for business…[but] I guess I'll support you". The complainant was "puzzled" by his reaction. Mr. S.C.1 drove her home and left. She told her mother and the latter called police. The complainant did not return to work again. She contacted Mr. S.C.1 by text messaging "to get more hours" but he only responded once to say the restaurant was not "busy".

[6] Cross-Examination of the Complainant

In cross-examination, the complainant stated that the first time the defendant touched her buttocks was "about one week" before the July 19 incident; "I felt his fingers [on my buttocks] and "squeezing". She added that she suspected this was intentional but did not want to say anything. Her suspicions were confirmed when, on July 19, the defendant questioned her silence about the matter. On the latter date, she was at the takeout counter when the defendant groped and rubbed her, from behind, as previously described. The complainant said that as he did this, he pinned her up against the counter at stomach level. She agreed that this area is visible from what is known as "table 1" – one of the tables available for customers to dine at.

[7] Further Cross-Examination Details

The complainant agreed that during the evening she asked the defendant if she could cook food at the fryers as it would be "fun" to learn a new skill. She also conceded her step-father came into the restaurant at about 8:15 PM to pick up a takeout order and that she did not speak to him about the defendant's conduct. She denied fabricating or exaggerating the events in question.

[8] Testimony of K.H. – The Other Cook

K.H. is 49 years old. He had been hired by S.C.1 to create a new menu and restructure the kitchen. He testified that on July 19, 2013 "business was slow", as usual, and that he, along with the complainant and defendant, were in the kitchen. During the evening he went from his side to the defendant's cooking area. When he "came around the corner" [at the dish pit], he saw the defendant and complainant standing near the cash register at the take out counter. The defendant had "a smirk" on his "beat red" face and nodded his head toward the complainant in a "gesturing" fashion. He described the smirk "like the cat that just ate the canary". The complainant "stood motionless" facing out to the dining area. There were no customers present. Mr. K.H. testified he thought nothing of the incident at the time and attributed it to "some silly conversation between them". He said he had not witnessed any other unusual interaction between these people before this time.

[9] K.H.'s Background and Credibility Issues

Mr. K.H. eventually left this employment because he and the owner were "not compatible". He felt that the defendant and Mr. S.C.1 were close and "conspiring to undo all that I had done in the restaurant". Indeed, he testified that after he returned from a two week leave of absence to deal with the death of his wife, the defendant told him that "there is no reason why I can't do your job". Notwithstanding this testimony, Mr. K.H. asserted that he had "no axe to grind" with the defendant and had he remained on staff, he would have "worked things out" with him. However, he conceded that after he was interviewed by police with respect to the allegations against the defendant, he sent a text message to him that said, "I'm laughing my ass off".

[10] Testimony of S.C.2 – The Owner's Daughter

S.C.2 is 22 years old. She is the restaurant owner's daughter and worked as a waitress on the day in question. She said that it was busy during the dinner hours, 5 PM to 7 PM, and it then "died down". At 7 PM, her father had dinner with a friend for about one hour. The restaurant closed at 9 PM. Ms S.C.2 testified that the complainant was "bubbly and chatty" until "near closing time" when she approached the witness and said she had been "sexually harassed" by the defendant. Ms S.C.2 reported this to her father soon after, when the defendant left for the day. She testified that the complainant told them the defendant was "touching her butt all night" and she wanted to call the police. Her father asked her to think it over and talk to her parents first. Ms S.C.2 described the complainant as "upset and nervous…like she didn't know what to say" but that she was not crying. She and her father drove the complainant to her home, as the latter expressed fear about walking on her own.

[11] Testimony of S.C.1 – The Restaurant Owner

S.C.1 is 53 years old. He confirmed that, in the presence of his daughter, the complainant told him the defendant had "touched her sexually and pinned her against the counter" and that he had said, "I want to get inside you". Mr. S.C.1 testified that the complainant did not appear to be upset and was not crying. He added that the take out counter is visible from part of the restaurant and that he had had dinner with a friend, at table 1, in full view of the counter, "for a good hour". Subsequently, at about 8 PM, he took a picture of the complainant for the restaurant web site and "she was her usual happy self". Given the location of the incident and the complainant's demeanour, he did not believe the allegations. Accordingly, he suggested the complainant speak to her parents before going to the police.

[12] Testimony of the Defendant – Opportunity and Denial

The defendant testified that on the day in question, he had assigned these tasks to the complainant; cut pickles, do dishes, and watch the take out counter when S.C.1 was not there. He said the latter was at the take out counter until 7 or 7:30 PM and then had dinner with a friend at table 1. At about 8:30 PM, Mr. S.C.1 took pictures for the restaurant website. The defendant left work at 9 PM and was telephoned 45 minutes later by Mr. S.C.1 and told of the allegations.

[13] Defendant's Explanation of Physical Contact

The defendant conceded that he was alone with the complainant in the kitchen and had the opportunities to commit the offences, but pointed out that at any time another person could have come by. He denied the allegations and stated that "there could be touching between bodies because it's a tight kitchen" but "no grinding up against her". He said it was unlikely that he used two hands to move the complainant out of the way to attend to his duties. He explained Mr. K.H.'s testimony about his "beat red face" as follows: "Now that I think about it, I recall the kitchen is hot….[the complainant] was telling me one of her silly stories, as she always did"….and as Mr. K.H. came around the corner, he gestured toward her to mark the episode.

[14] Defendant's Prior Statement to Police and Character Attacks

In a prior statement to the police, the defendant stated that he "might" have placed both hands on the complainant's hip to move her out of the way, while he was working. He testified he did not think she could have misconstrued this act. However, in the prior statement, he said otherwise. The defendant's prior statement also contains several references to the complainant's dress and demeanour. He said he had to speak to her because she dressed "provocatively", noting that she wore a low cut dress and "fishnet" and used perfume. He also described her as "super flirty with all the guys" and that she "made passes" at him. He testified that this was "no big deal" and referenced their difference in ages. He denied the suggestions his statement to the police was designed to malign the complainant and deflect suspicion away from him. The defendant testified his observations about the complainant are true and that he believed it was necessary to state them to defend himself.

Legal Framework and Standard of Proof

[15] The Burden of Proof

The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This standard of proof is set out in the often cited decision by the Supreme Court of Canada in R v W.D. (1991), 63 C.C.C. (3d) 397. A helpful discussion of the applicable principles is set out in R. v. DiPucchio 2009 ONCJ 39:

I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witnesses appears more credible. As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 3177, at para 5 noted recently:

W.D. and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of a Crown witnesses to that of defence witnesses.

I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

"However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused."

Proof beyond a reasonable doubt means what it says. There is, thus, nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused, or the evidence of any other defence witnesses, or the absence of evidence, the charge must be dismissed: R. v. Lifchus, [1997] 3 S.C.R. 320.

[16] The Complainant's Version and the Offence

It is clear that on the complainant's version of events, the offence is made out; that is, there can be no doubt the defendant intentionally applied force against her, without her consent, in circumstances of a sexual nature. The defendant does not plead a mistaken belief in consent; he denies the physical acts occurred. Although not put to him directly, it is obvious he also denies asking the complainant if she had ever "been with an older man", that he "could make that happen" and that he would like to "be inside her".

[17] Abandoned Defence Challenges

The complainant's trial testimony was challenged on several grounds including, by reference to a prior statement made to officers who first responded to her mother's call to police and on the suggestion she fabricated the allegations to protect her job. As these challenges were abandoned by the Defence in submissions, I have not referred to the relevant evidence.

Analysis of the Evidence

[18] Defence Arguments Regarding Improbability

The Defence acknowledges there is nothing to show a motive to fabricate. However, it is claimed that the complainant's evidence cannot support a conviction because it is improbable, internally inconsistent, and contrary to the testimony of other witnesses. In this regard, counsel makes the following points: It is unlikely the defendant would commit the acts in question at the take out counter, knowing that at any moment a member of the public or staff could appear there. The complainant said her suspicions about the defendant were confirmed on July 19 when he asked her why she had remained silent after his previous groping of her buttocks. This is incompatible with her subsequent request, that same evening, to help the defendant at the fryer because it would be "fun" to learn a new skill. In any event, it is at odds with the testimony of Mr. S.C.1 and Mr. K.H. who noted they saw nothing to suggest the complainant was upset or ill at ease on the day in question. This demeanour cannot be attributed to not wanting to cause a scene. Counsel also points out that Mr. S.C.1 and his daughter both dispute that the complainant was crying when she reported the events to them and suggests it is strange that she did not seek the comfort of her step-father when he arrived to pick up a food order.

[19] Timing of the Alleged Assault

It may be that the defendant had the opportunity to inappropriately touch the complainant throughout the evening but it is unlikely he could have engaged in the more prolonged groping before 8 PM. If this occurred, all the evidence suggests it happened between 8 and 9 PM, as the business had essentially ended as had Mr. S.C.1's dinner with a friend at table 1.

[20] Assessment of K.H.'s Credibility and the Defendant's Demeanour

Mr. K.H.'s evidence must be approached with caution because he felt undermined by the defendant at work and seemed pleased by the allegations made against him. However, there is no reason to doubt his assertion about the defendant's beat red face and smirk. Indeed, the defendant admitted as much. I am not persuaded by the defendant's explanation for what the Crown claims is a passionate demeanour – "now that I think about it, it was hot in the kitchen". This is too convenient. I am also concerned by his comments about the complainant's provocative dress and flirtatious attitude. Notwithstanding his denial, they were obviously meant to malign the complainant. In this he failed; rather, he calls his own character into question. These observations explain why I am not impressed with the defendant's trial testimony. However, I do not reject it entirely. For example, he candidly admitted that he had the opportunity to commit the acts in question. Moreover, his assertion that it would be foolish and risky to do so in an area within sight of staff and customers who could appear at any time is a fair comment.

[21] Assessment of the Complainant's Evidence

The complainant's evidence is not free from difficulty. I accept that she was not crying when reporting the incident to Mr. S.C.1 and Ms S.C.2. I would not make this finding on the basis of Mr. S.C.1's testimony; he does not believe the complainant and cannot be relied upon to give an objective account of the events. However, his daughter did not exhibit such bias. I believe her. This does not mean the complainant is lying. She was seventeen at the time and could have innocently exaggerated her response to the events described. This may also explain another embellishment - the assertion that the defendant touched her "all night" and that "Every time I went to the take out side he'd do that and rub his groin up against me". This is unlikely to have happened between the busier period from 5 – 7 PM and certainly not in the following hour when Mr. S.C.1 dined in plain view of the take-out counter. In light of such constant harassment occurred, it is hard to understand why the complainant did not tell her step-father when he arrived or why she would ask the defendant to allow her to use the fryers. Not wanting to create a scene does not adequately explain this. On the other hand the complainant's text message to Mr. S.C.1, later in the evening – "sorry for the drama, my mom called the police" – as well as her request to be driven home, rather than walk alone, confirm something had upset her.

[22] The Nature of Sexual Assault Trials

This prosecution is similar to almost all such trials in that the complainant and defendant are the only direct witnesses to the events in dispute. At the end of the day, I must assess their testimony in the context of the whole case and my verdict must reflect the burden of proof faced by the Crown.

Verdict

[23] Acquittal

I must dismiss the charge. I do not mean to suggest the complainant is untruthful. I prefer her evidence to that of the defendant. However, as indicated, the record at this trial does not justify a total rejection of his testimony. In addition, some of the complainant's actions are at odds with some of the allegations. Accordingly, I am not satisfied that the Crown has proven guilt beyond a reasonable doubt. In this regard, I am mindful of the difference in age between these individuals and the power imbalance in their relationship. It is especially troubling that after the complainant reported her concerns, she effectively lost her job and the defendant continued to work.

Released: January 23, 2015

Signed: "Justice J. De Filippis"