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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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, 2017

Court File No.: London 16-7084

Between:

Her Majesty the Queen

— and —

Hussain Al-Ekabi

Before: Justice A. Thomas McKay

Heard on: February 23 and July 31, 2017

Reasons for Judgment released on: August 22, 2017

Counsel:

• Mr. Heron — counsel for the Crown
• Mr. Ellis and Mr. Barry — counsel for the defendant Hussain Al-Ekabi

MCKAY J.:

INTRODUCTION

[1] The accused is a 71-year-old businessman with a PhD in chemistry. He runs a business which organizes international scientific conferences around the world. He is associated with a University. The complainant is a 25-year-old woman who is married and has a young child. She worked in an administrative role for the accused's business on a part-time, as needed basis.

[2] The accused is charged with sexually assaulting the complainant. The theory of the Crown's case is essentially that the complainant was anxious to be given more hours of work by the accused. The accused wanted her to attend lunch and dinner meetings which were not particularly related to business. On March 5, 2016, after originally expressing a reluctance to do so, she agreed to accompany him on a drive to the country where they would have lunch somewhere. While on that drive, he sexually assaulted her by touching her genital area over her clothing.

[3] The accused's position is that any touching which took place on the drive was the result of his mistaken belief that it was consensual.

[4] As part of the evidence, the Crown filed copies of text messages between the complainant and the accused during the period from October 1, 2015 to March 6, 2016. In addition, the Crown filed an extraction report which extracted information from the complainant's cell phone and set out details of various messages, texts and telephone calls made from or received by that phone. In addition, the complainant used her phone to audio record significant portions of the drive which she took with the accused. There was also a transcript of that audio recording filed.

[5] For the reasons which follow, I find that the accused sexually assaulted the complainant.

EVIDENCE

The Complainant

[6] At the time that the trial began, the complainant was working in the service industry. She originally met the accused through her former job, working as a cashier in her father's restaurant. The accused was an acquaintance of her father's. She had met the accused approximately two years earlier. She was told by other staff members at the restaurant that the accused had good work for people, so she obtained his contact information and contacted him directly to inquire about employment. The accused indicated that things were slowing down during the winter months and that he would not need much help over those months. They discussed her being paid an hourly rate of $25. She received some training and then worked limited hours beginning in the fall of 2015. The accused invited her to dinner on a number of occasions. They would discuss the work he did, her father's business, and other general topics.

[7] In early March 2016, there was some conflict in their relationship, so they decided to meet to discuss her continued employment. For the most part, she communicated with the accused by text message. He suggested that they meet on March 5th, and indicated that he wished to take a drive in the countryside. He had suggested the same thing on two to three other occasions, but she had declined because it seemed inappropriate to her. A public restaurant was an acceptable meeting place, but something like a drive in the countryside was too intimate for her liking. She originally declined taking the drive in the countryside. However, his reaction to that was interpreted by her as meaning that she was unlikely to get any additional hours of work. Therefore, she agreed to meet him at a mall in London on March 5th to go for a drive in the countryside, and lunch.

[8] Because of her nervousness about going on the drive, she used her telephone to make an audio recording of what happened in the car. At one point she turned the recording off because the conversation appeared to be harmless and she did not want the accused to notice that she was recording it. As she became more uncomfortable, she resumed recording the conversation. They drove outside of London for a little more than 20 minutes. The accused was complementing her on being a great person and a good friend. He reached out with his right hand and began holding her left hand. It made her uncomfortable, but she simply let it be. At one point, he asked her to move her purse off of her lap. After the purse was moved, he put his hand on her thigh.

[9] The accused was holding her hand for approximately five minutes. They stopped at a restaurant. The accused did not like the atmosphere there, so they left the restaurant without eating. She was nervous at that point because the accused had been holding her hand at times during the drive. She asked if he could wait for her to have a cigarette outside the car. After that, she convinced the accused to return to London to go to a restaurant which she said would suit his taste. He agreed and she called that restaurant and made a reservation. While driving back to London, the accused's tone changed. He talked about being attracted to her. He put his hand on her upper inner thigh. She told him that that was not appropriate, and repeatedly tried to move his hand away from that area. He would simply move it back. She told him to watch the road and he indicated that he could not resist. She told him that it was inappropriate. He put his hand back on her inner thigh and used his thumb to rub her vaginal area over her clothing. She squirmed and pushed his hand away. She was trying to stay calm because she was in a moving car.

[10] When they arrived at the restaurant in London, she turned off the recording and went into the restaurant with him. She ordered a drink and then went to the washroom. She made a call to her friend from the washroom, and then for a period of time she hid near the back wall, crying hysterically. She wanted to regain control and collect herself. She fixed her makeup, calmed herself down, while thinking of a way to leave the restaurant without causing a scene. She returned to their table and then excused herself to go outside for a cigarette. She then went to the restaurant host and spoke with him. She wanted to have an opportunity to leave the area, and then have the host tell the accused that she was not returning to the table. She told the host that she had been sexually assaulted and asked him to wait 15 minutes and then tell the accused that she was not returning. The host asked whether she needed help from the police. She declined, saying she did not want the police or a scene at the restaurant. She left the restaurant and walked to a nearby store with a view of the restaurant. She then telephoned her husband and asked him to pick her up. Her husband arrived approximately 5 to 10 minutes later.

[11] The complainant indicated that initially the conversation in the car was normal, but she was nervous about the situation, and therefore recorded it. The audio recording was played, and at various points she was asked to comment on the context and the sounds. She testified that in the initial portion of the drive, she was simply attempting to act like the accused's behaviour was an attempt to be a nice thoughtful boss. She was also asked to comment on an extraction report which was filed as an exhibit. The report extracted information from her cell phone regarding texts, messages, and calls.

[12] In cross-examination, she agreed that she wanted more hours of work from the accused. She rejected the suggestion that she was deceptive with the accused in order to gain a financial advantage. She also rejected any suggestion that she was taking advantage of the accused; she simply wanted the job. She agreed that, early on in the work relationship, she asked the accused for an advance payment of $11,000, which she would subsequently repay by working the required number of hours. He rejected that proposal, and it was never discussed again. She rejected any suggestion that she ever described her relationship with the accused as a girlfriend/boyfriend relationship. She did not immediately call the police because she wanted to collect herself and "figure things out".

Andrew Whitney

[13] On March 5, 2016, Mr. Whitney was employed as the Assistant General Manager of a restaurant in London. At approximately 3:45 p.m., he was approached by a woman at the front of the restaurant. The woman had earlier called to make a reservation at the restaurant. She had arrived earlier with the accused. On arrival, she seemed upbeat and lively. Five minutes after they arrived, she spoke with him. She was upset and crying. As a result of their conversation, he offered to telephone the police. She declined and indicated that her husband would take care of her. She asked him to wait a period of time, and then tell the accused that she went outside for a cigarette. She then left the restaurant.

Video Surveillance Footage from the Restaurant

[14] Video surveillance from the restaurant was played. It shows the accused and the complainant enter the restaurant at 3:29 p.m. She appears again on the video at 3:46 p.m. and appears to be checking to see if the accused could see her from where he was seated. She waits for approximately one minute while the host is speaking on the telephone. She then spoke with the host, and left the restaurant.

Audio Recording from the Car

[15] Significant portions of the conversation which took place while driving in the car were recorded on the complainant's cell phone. She testified that she held the phone in her right hand, concealing it because she was afraid that the accused would see that she was recording the conversation. After an initial period of time, she turned off the recording because her fears appear to be unfounded and the conversation was normal. When she became concerned again about the tone of the conversation, she resumed recording.

[16] At one point, the accused brings up the topic of sex, stating a number of times, "I love sex". He then states to the complainant "I love it. Believe me my eyes on you from the first day I saw you cashier two years ago". Moments later, he is heard saying "I love this. I love this. I love this". The complainant's immediate response is as follows: "You can't touch me. You can't touch me like that. I'm loyal to my husband". The conversation continues as follows:

Complainant: I do not believe in cheating or any of that stuff. It is one thing if someone single, right? Anything goes.

Accused: I'm horny now.

Complainant: Yeah, touching my leg.

Accused: Yeah, I know. I know. I know. I will kiss you after drink, I have to tell you. I will kiss you. And I hope …

Complainant: I don't…

Accused: I hope you, you will allow…

Complainant: No, I can't. There's no way. There's no way. I need you to take your hands off me, please.

Accused: Yeah

Complainant: Please…

Accused: I'm going to please….

Complainant: I need you - ah, no I can't. I need you to take your hands off me. You are so touchy.

Accused: I know because….

Complainant: Because

Accused: I cannot resist you. I cannot resist you.

Complainant: I know, but we made an agreement.

Accused: I know. I cannot resist you. Yeah, believe me, I cannot resist you. I cannot resist you.

[17] Later in the conversation, the accused asked the complainant if she likes sex. She responds by saying that she likes sex with her husband. He then asked her what the maximum number of times she has had sex in a day is. He asked about what position she prefers. She responds by saying "that's really personal". That is followed by this exchange:

Complainant: You realize you are touching my privates right now?

Accused: I know. I know. I know. I know.

Complainant: I need please need you just….

Accused: I have experience. Before anything else I read the sexual map of the woman.

Complainant: Ah, yes…

Accused: Before any intercourse. Determine which part of the woman excite her more. And we go from there.

[18] There is additional conversation recorded, and the recording eventually ends with a discussion about how they get to the restaurant in London where they have a lunch reservation.

The Accused

[19] The accused testified on his own behalf. He is 71 years of age, does not have a criminal record, and holds a PhD in photochemistry. He established the company which he currently operates in 1992 while working at the University of Western Ontario. The company's main business is organizing international scientific conferences.

[20] He met the complainant approximately one year before these events while she was working at her father's restaurant. He developed a friendship with her father, and eventually with her. In October 2015, she contacted him about secretarial work. He advised that he had limited hours available at the time because this was the end of his busy season. He did employ her to a limited extent. She worked four days in early October, one day in November, and one day in January, for a total of 34 hours. He indicated that after she worked for him on the October dates, he decided not to use her as an employee anymore unless he had no one else to call in to work. During those dates, she had provided him with a great deal of personal information, complained about a coworker having an affair, and talked about the "swinger community" in London.

[21] In November 2015, he was on a business trip in San Diego. The complainant bombarded him with text messages wanting to meet him. Accordingly, on November 24, 2015, he arranged a lunch at a downtown restaurant. The complainant asked him for $11,000 to pay accumulated debts. He declined that request. He testified that between November 2015 and March 2016, he characterized their relationship as intimate. They would have dinner or lunch together. The complainant often asked to go to lunch or dinner. After an exchange of emails on February 29, the complainant was upset. On March 4 he contacted her to see if she wanted to go for a drive the following day. She agreed to do so. They drove outside of London and stopped at a restaurant. However, they were not satisfied with the restaurant and did not eat there.

[22] During the drive, the complainant grabbed his hand and held on to it. She pulled his hand onto her lap. She had a small handbag in her lap, and at one point asked him if it was hurting him. She then moved the handbag, and placed his hand between her thighs. He took that as consent. Through her body language, the complainant was trying to convince him that she liked him. She eventually placed his hand in her vaginal area. He was 100 percent sure from her body language that she consented to this act. In hindsight, he believes that she manipulated and guided the conversation the way she wanted because, unbeknownst to him, she was recording it. He testified that he has reviewed the recording many times. He counted 24 times during a 17 minute period of the recorded conversation when the complainant laughed. He testified that she was massaging his hand and made him feel like the two of them were in bed together. His evidence is that the complainant got him excited, then started to say things very softly, such as "do you realize your hand is touching my privates". He denies that the complainant ever pushed his hand away.

[23] He also testified that after they stopped at the restaurant outside of London, the complainant had a cigarette beside the car. He indicated that they started kissing and hugging and that she was happy with that. He saw no issue with her mood. The two of them went to the restaurant in London together. She ordered a drink and then left for the washroom. She returned and sat at the table briefly, and then received a phone call, which she went outside to take. He waited a period of time, and the waitress told him later that the complainant had received an emergency call from her husband and had left.

[24] In cross-examination, he indicated that he initially did not find the complainant attractive, but that eventually he did so. He maintained that throughout the drive, the complainant was giving him different signals. One signal was with her words, but the other was with her body language. She was effectively saying one thing, but doing something else. He was happy with her holding his hand, and she was "not strong enough" in the words that she spoke. He believed that he had consent.

POSITIONS OF THE PARTIES

The Crown

[25] The content of the text messages makes it clear that the complainant was resistant to going for a drive out of the city with the accused, but that she eventually agreed to because of her desire to cooperate in order to receive more hours at work for the accused. Both the testimony of the complainant and the recording of the car ride make it clear that she repeatedly and clearly protested the accused's advances and his physical contact with her. She was in a precarious position in a moving vehicle in the countryside, but she consistently protested the accused's advances. The accused's evidence is simply not believable. The Crown has proven the case beyond a reasonable doubt.

The Defence

[26] The accused had an honest but mistaken belief in consent. The burden of proof is on the Crown. The accused now realizes that he was mistaken in his belief of consent. That gives the defence an air of reality. Mens rea for the offence is to be measured in the mind of the accused. A review of the recording and its transcript supports the suggestion of confusing signals. There were discussions about intimate sexual matters engaged in by both parties. The complainant moved her purse off of her lap, facilitating a more intimate touching.

[27] The complainant had also intentionally misled the accused about her feelings for him and their friendship in order to gain financially. That attempt to intentionally mislead by the complainant goes to understanding the accused's misapprehension of their relationship. At one point in her evidence in chief, the complainant indicated that when the accused began holding her hand, she did not say anything. In addition, later in her testimony, when asked about his actions being inappropriate, she testified that he was "totally unaware it seemed". The assault amounted to a fleeting touching of her vaginal area over top of her clothing, which she facilitated by moving her purse. Given the accused's evidence regarding his mistaken belief in consent, the Crown has not proven the offence beyond a reasonable doubt.

APPLICABLE LEGAL PRINCIPLES

[28] The Criminal Code defines an assault as, in effect, a touching without the consent of the complainant. A sexual assault is an assault within any one of the definitions of section 265 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 is objective: whether viewed in all of the circumstances the sexual nature of the assault is visible to a reasonable observer.

[29] Section 273.1 of the Criminal Code defines the meaning of consent for purposes of sexual assault. Among other things, it provides that no consent is obtained where the complainant expresses, by words or conduct, a lack of agreement to engage in the activity. Section 273.2 outlines situations where belief in consent is not a defence, and reads as follows:

273.2 It is not a defence to a charge under section 271, 272 or 273 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

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

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

The burden remains on the Crown to prove all elements of the offence beyond a reasonable doubt.

ANALYSIS

[30] When one examines the entire context of the text communications between the complainant and the accused, along with the other evidence, it is obvious that she was attempting to be nice to him, to encourage a friendship, at least in part because she hoped to receive additional hours of work from his business. It is also apparent that she was reluctant to go for a drive with him in the country on March 5, 2016, although she eventually agreed to do so. The tone of the messages which she sent to other individuals confirms her apprehension about her agreement to do so. It is obviously not an equal relationship. The accused is much older, more experienced, and more successful. He also had something she wanted: more hours of employment in his business.

[31] While there are differences in descriptions of the circumstances of the contact between the accused's and the complainant's vaginal area, there is no dispute that there was contact. The Crown bears the burden of proving each element of the offence beyond a reasonable doubt. The accused raises the issue of mistaken belief in consent.

[32] Even if I were to accept the evidence of the accused, I find that the evidence would establish that the only basis upon which the accused could have had a mistaken belief in consent was through recklessness or wilful blindness. He would have ignored the very clear and repeatedly spoken words of the complainant in which she indicated that she wanted him to stop his advances, and relied instead upon his interpretation of what he says he regarded as conflicting signals through body language. Therefore, in my view, even if I accepted his evidence, section 273.2 of the Criminal Code would require a conviction to the charge. However, I do not accept his evidence.

[33] The accused's evidence is simply not credible. He was evasive and argumentative in his evidence. His evidence is illogical. He suggested that after the complainant worked a few days in October 2015, he decided that he would not use her for further employment unless he had no other choices. That is inconsistent with communications between the two of them. He used his opportunity to give evidence to effectively argue that the complainant was not credible because of issues such as the number of times that she could be heard giggling or laughing on the audio recording. I do not believe his evidence, nor does his evidence raise a reasonable doubt with respect to what transpired.

[34] I find the complainant's evidence to be completely credible. Her evidence is also consistent with the text messages between the two of them, the extraction report related to her cell phone, the surveillance video of the restaurant in London, and the audio recording of what transpired in the car. With respect to the issue of her laughing at times during the audio recording, she explained in her evidence that it was a nervous laugh given the difficult situation that she was in. I accept that explanation. I do not draw any negative conclusions from the fact that the complainant did not immediately telephone the police once she arrived at the restaurant in London. It is perfectly understandable that she would take a few minutes to gather herself, reach out to a friend for advice, remove herself from the area and then telephone her husband.

[35] Where the evidence of the accused conflicts with the evidence of the complainant, I accept her evidence.

CONCLUSIONS

[36] I find that the Crown has met the burden of proving the charge beyond a reasonable doubt, and a conviction will be entered.

Released: August 22, 2017

Signed: Justice A. Thomas McKay