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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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.

Ontario Court of Justice

Date: 2018-04-20

Court File No.: Central East - Newmarket 4911-998-17-33428

Between:

Her Majesty the Queen

— AND —

Michael Loutfi

Before: Justice P.N. Bourque

Reasons for Judgment

Released on April 20, 2018

Counsel:

• G. Hendry for the Crown
• M. Fahmy for the defendant

BOURQUE J.:

Overview

[1] The complainant, while in the course of driving two men home from a bar late at night on February 6, 2017, asserts that she was grabbed and groped by one of the men. She became so concerned about this behavior that she called her supervisor and eventually left the vehicle. It has resulted in charges of assault and sexual assault.

Evidence of the Complainant (P.L.)

[2] P.L. is 36 years old and while presently on disability, on February 6, 2017 was working for a taxi service called "People's Choice Designated Driver Service". It is a service whereby people can have someone drive them home in their own vehicle when they are unable to do so.

[3] On this evening, the witness was using her own vehicle and was with a partner named B.P. This was a busy evening for them (as it was the Super Bowl) and they had many calls. They had arranged earlier to pick up two men (one named Pratt) at a bar called 905 at midnight. They were a little late so they called Pratt. When they arrived, Pratt was outside in some heated conversation with others. The witness got out of her car and went up to Pratt. The bouncer went inside to get the other man (who was later identified as Michael). The witness was holding his hand (this action outside the bar was shown on a video surveillance camera as Exhibit 1).

[4] After some time, Michael came out of the bar and had his hands raised. The witness walked both men to their car and they spoke of smoking in the car which the witness did not object to, as she was a smoker of cigarettes. She described both men as being intoxicated with Pratt being talkative.

[5] When in the car, it took some time for the men to settle down. Pratt was in the front passenger seat. Michael was in the back seat behind the driver's position, which the witness occupied. She had put up her hand and Michael commented on her nail polish and her ring. Michael spoke of the gold rings he had on a necklace. The witness got a call on her phone from her daughter who was upset but the call was finished and they left the parking lot of the "905". The witness drove onto the 401 highway.

[6] She stated that she felt a hand from behind her and it went over her shoulder and down onto her breast area. She was wearing a winter coat, although she stated that it was fitted and showed the distinct curve of her breast area. The witness told Michael to stop and to put on his seat belt. Pratt was yelling at Michael and told him to stop.

[7] Michael stopped but soon thereafter, she felt his hand over her shoulder again. Then she felt his hand come up her right side and up to and on her right breast. All of these touching's were over her coat. She told him to stop several times. She could also smell marijuana burning and thought that Michael had lit a joint. She told him to throw it out of the car and after several requests he did so.

[8] The witness felt a hand from behind over her mouth. She told him to stop. They then said that they wanted to go to McDonald's on the way home. She explained that there was a $5 charge to stop for that purpose. Michael began to argue with her about this charge and began to call her derogatory names including "bitch", "cunt" and "whore". Eventually, the witness said she would take them through the McDonald's window and not charge them. She was becoming very uncomfortable at this point.

[9] At the McDonald's after they had ordered, Michael again brought his hands up to her breast and chest area. The witness said that she "had had enough". She dialed her boss, K.S. and was talking to her on the speaker phone. At this point Michael is trying to touch her again and she turns around and says to him: "Don't fucking touch me – I will punch your teeth down your fucking throat if you touch me again". She says that Michael is laughing and at this time Pratt (who has been trying to control Michael) is now becoming agitated. She believes she has to leave and she sees B.P. in the chase car and she pulls over to her and gets out of the car, taking the keys with her. (She says that are the standard instructions from her employer). She goes and gets in the chase car with B.P. The police are called but in the meantime, both the defendant and Pratt are banging on her car. Eventually the police arrive.

[10] In cross-examination, some inconsistencies were discussed. In her statement to the police she said that "they" smoked pot. In her evidence, she was adamant that it was only the defendant. She also stated she did not know where the defendant was from and what language he spoke. In her statement she said that he said "mademoiselle" to her and something else she did not understand.

[11] The defence put to her that while they were at the McDonald's, the defendant may have been merely trying to get her attention by tapping her so he could order his food, and indeed hand her up his credit card. She did not know why he was touching her but she was adamant that he touched her breast again.

[12] She admitted in cross-examination that she had taken anger management courses in the past. She thought that she was controlling her anger and only spoke loudly to him after he touched her again at the McDonald's.

[13] Counsel pointed to a time during the interview with police that she spoke of the touching and at the same time, she pointed to her shoulder/chest area. The witness described it that she was touching her "upper breast". As I view the video, I agree that it was her upper breast and chest area.

[14] She was extensively cross-examined about the movement to her side and then on her breast. She agreed that the hand did not have to come up very far to touch her breast. She also agreed that in all occasions when she said he touched her breasts, he started either on her shoulder or her side. She agreed that he was behind her at all times.

[15] She was also asked why she did not get out of the car earlier. She said she had had a previous incident where she did that and felt she had been criticized by her boss. She also said that she felt that Pratt was defending her and she could make it to their home without further incident. She also said in court that she was not physically assaulted by Pratt but was verbally assaulted. In her statement to the police, she stated that they were both assaulting her.

[16] The witness was taken to a place in her statement to the police (page 11) where she threatened to pull over the car. She could not remember saying that at the time of trial. She also indicates in her statement that she threatened to pull over if they didn't stop smoking pot.

Evidence of K.S. (Supervisor)

[17] K.S. was the dispatch person for the taxi company. She confirmed that P.L. called her and told her that a passenger kept grabbing her. She is saying "don't grab me". It was put on speakerphone. The witness told them that they must put on their seat belts and not touch the driver and let her drive them home. It did not surprise her that she would be as angry as she was and that fact that she threatened to punch him "did not surprise me". She said that if she was in that position, she could use more forceful words.

[18] She said that when the driver feels the need to get out of the car, then they should take the keys as they felt they would be responsible if they drove and hurt someone.

[19] It was her evidence that if they feel the need to get out, they should call and should not let them drive, and that is the whole idea of the service.

[20] In cross-examination she was shown the e-mail that she sent to the police. In the e-mail she said that P.L. had said to her "that one of the passengers had grabbed her breast and grabbed her throat and grabbed her mouth".

[21] I note in P.L.'s evidence that she never stated that someone had grabbed her throat.

Evidence of B.P. (Chase Driver)

[22] B.P. is a retired woman who, at the time, was working part-time for the taxi company that P.L. was working for.

[23] That evening she was the "chase driver" and would follow P.L. to the destination of the fare.

[24] She stated that they had spoken to the men earlier that evening but she did not think that they had been paid any money up front.

[25] She stated that they went later to the 905 club and P.L. picked up the two men. She stated that before they left the parking lot, P.L. had called her and told her they were going to McDonald's. I note that this contrasts with Pamela's evidence who said that the issue of McDonald's came up later.

[26] She stated that she followed P.L. to the McDonald's although she does not remember the route, but believed the McDonald's was near a Costco store. She stated that she saw P.L. in the car at the drive through and she turned around several times.

[27] She stated that as P.L. was leaving the drive through, she did not go left to leave the parking lot but went right and came up to her car and stopped. She got out of the car (she had the keys to the car with her) and got into B.P.'s car. She was upset and crying. P.L. told her that one of the men was trying to touch her and was grabbing her breasts and trying to take her ring off. The witness described her as hysterical. P.L. told her to lock the doors.

[28] The two men came up to B.P.'s car and were pulling on the doors and were yelling and calling P.L. a "slut", "bitch", amongst other things. She could not recall if she heard them asking for the keys. The witness called 911. P.L. wanted her to leave but the 911 operator told her to stay there until the police arrived.

[29] In cross-examination, she stated that P.L. had told her that when he grabbed at her face, his hands had gone around her neck. She also said that the men had smoked a joint in the car and she had told them not to do that.

[30] She does not recall any police officer asking P.L. if she wanted any of the men charged. She was vigorously cross-examined about whether P.L. was angry. She said that she thought she was upset although she may have used some swear words while she was talking. After listening to portions of the 911 call (Exhibit 4), the witness admitted that the two men returned to their car before coming back to her car a second time. She also stated that she was trying to make light of the situation to P.L. as they were awaiting the police as P.L. was so upset.

Evidence of Toby Sebaaly (Police Officer)

[31] Toby Sebaaly is a Durham Regional Police officer. He received a dispatch at 00:39 hours and arrived at the McDonald's shortly thereafter. He said that he saw two men in the parking lot and he believed they were intoxicated. Both of the men were irate. He identified the defendant in court as one of the men. He spoke briefly to P.L. who stated to him that the defendant tried to take her ring and when she refused, he grabbed her face and groped her breasts several times. She appeared to be very emotional and upset. The officer did not take a detailed statement from her.

[32] The defendant was arrested for sexual assault and assault. The defendant was uncooperative and another officer had to assist in handcuffing him. The defendant was clearly agitated and spoke in French to the officer (who is bilingual) and made derogatory sexual remarks about himself and the officer's family. This agitation continued through the arrest, the travel to the station, and indeed in the interview room at the station. The defendant also said he would give the officer $100,000 to fight him.

[33] A video of the defendant in police custody was played.

[34] While the crown spent a lot of time on this evidence, I give very little weight other than to show that the state of inebriation of the defendant and his unhappiness at being under arrest.

Defence Evidence

[35] The defendant testified on his own behalf.

[36] He is from Egypt but now lives in Montreal. He was in Ajax for a year with a team of salesmen in the HVAC industry. He would go door to door. He had been working for about 2 weeks straight going to potential customers and that evening eventually, people were watching the super bowl and they stopped. His friend suggested they go to a nearby strip club and he and "Pratt" drove to the club in the company vehicle. After speaking to a door man at the 905 club, they went up to the complainant and her confrere and asked them to return. He believes that his friend gave them $20 at that time.

[37] They went into the club and bought a 750 ml bottle of vodka and were shown a table. They shared the bottle with others and he believes he had about 5 drinks. He described himself as tipsy. He was cross-examined extensively about his sobriety but insisted he was not drunk enough to be falling down or puking. He was called outside by the door man when their driving service arrived. He stated that he introduced himself to the complainant who would be driving their car.

[38] He said that when they got into the car that Pratt gave her a $100 bill.

[39] Pratt rolled a joint and as they drove, he and Pratt smoked a joint. They offered it to her but she did not want any. She did not complain at their smoking. He stated that he reached over her shoulder and touched her shoulder to get her attention to ask her to take them to the nearby McDonald's. They had an argument about her stated $5 charge to do so, but she agreed to take them for no charge. He had touched her again in that conversation on the shoulder and she explicitly told him not to touch her again.

[40] At the drive through, he touched her on the shoulder again because they were getting confused about the food order. She did not seem concerned at this point. However as they went to pay for the food, he put forward his credit card (which she refused to take as she wanted cash) and in doing so, he touched her on the side. He stated that she became enraged and said that is enough. She drove into the parking lot and called on the phone. There was general argument at this point and very soon afterwards, she took the key to the car and went and sat in the chase car. He and his friend were very angry and went up to their car and were yelling (the friend threatened the woman). Eventually the police came and they were arrested.

[41] While in custody, the defendant admitted that he acted up in the police cells. The crown questioned him extensively about a remark the defendant made while the officer was removing his necklace. The remark was "this necklace is worth more than your child". The defendant at first denied making the remark but then admitted it and also admitted that it was disrespectful. Quite frankly, I don't give much weight to the antics of the defendant while in custody. He was infuriated at being charged with sexual assault. That in my opinion weighs little in my consideration as to the previous events in the car that evening. The Crown asserted that there were other aspects of his behavior in the cells that showed a sign of impairment. That certainly may be so, but again, it does not take us very far in determining whether he had committed this crime.

[42] The Crown also spent a lot of time in cross-examination about the actions of the defendant after the complainant left the car with the car keys. Quite frankly, I again don't find much that is really relevant to the determination of the issues. He and his friend Pratt wanted to get their keys back. His actions were not entirely rational, but they were understandable. In any event, I don't see how they impact upon the issue I have to decide, which is whether he committed a sexual assault upon the complainant earlier in the evening.

Analysis

[43] The Crown must prove the essential elements of the offence beyond a reasonable doubt as stated in R. v. Lifchus, [1997] 3 S.C.R. 320:

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• Reasonable doubt is not a doubt based upon sympathy or prejudice;

• Rather, it is based upon reason and common sense;

• It is logically connected to the evidence or absence of evidence;

• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• More is required than proof that the accused is probably guilty - a judge or jury which concludes only that the accused is probably guilty must acquit.

[44] The defendant has provided evidence which would if believed afford him a defence to the charge of sexual assault. I must apply the doctrine of R. v. W.(D.), [1991] 1 S.C.R. 742 in assessing his evidence. Thus, if I believe his evidence, then I must acquit him of the charge of sexual assault. Even if I do not believe him, I must ask if the evidence leaves me with a reasonable doubt, and even if I am not left with a doubt by his evidence, I must ask myself whether, based on the Crown's evidence (that I do accept), am I satisfied beyond a reasonable doubt of the charge as laid.

[45] With regard to the evidence of the defendant, I believe most of it. I believe that when he touched the complainant, his purpose was to get the attention of the complainant driver. I believe that there was some argument in the car. I cannot however accept his denial that his hands never touched the breast area of the defendant. I find that the clear reaction of the complainant during these events would put doubt into his assertions that his hands never touched her breast area.

[46] That is not the end of the matter however, as I must assess the total evidence that I do accept in this matter.

Legal Framework for Sexual Assault

[47] Section 271 of the Criminal Code states as follows: "Everyone who commits a sexual assault is guilty of…". It does not define sexual assault.

[48] Section 265 of the Criminal Code defines assault as: "A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly".

[49] From R. v. Chase, courts have defined sexual assault at paragraph 11 as follows:

…is an assault within any one of the definitions of that concept…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, including threats which may or may not be accompanied by force, 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 considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

The Circumstances of the Act

[50] I find that the defendant was a passenger in the back seat of the car and the complainant was driving him and his friend home from a bar late at night. The relationship between the defendant and the complainant was akin to a cab driver giving a ride to a paying passenger. The complainant and the defendant were strangers to each other.

[51] The defendant was clearly intoxicated by alcohol and indeed by drug. He was somewhat talkative and clearly somewhat unruly.

[52] It is clear that on several occasions, he put his hands on and over the shoulders of the complainant. He also put his hand onto the right side of the complainant. In doing so, I find that he also touched her breasts over her clothes (it was winter and she was wearing an overcoat). There is no outward evidence that he was "squeezing" or "rubbing" his hands on her breast area. It was several instances of touching. I do not find that he put his hands over her "mouth" and I do not find that he put both of his hands (at the same time) over her shoulders and onto her breasts.

[53] The complainant was becoming distressed by this and on several occasions told the defendant to stop. She eventually lost her temper (with good cause) and yelled at the defendant, and then she called the police.

[54] All of this contact was unwanted and there was clearly no consent to any of this contact.

[55] The defendant's explanation was as follows:

(i) he was in a tipsy and happy state;

(ii) he was attempting to get the attention of the driver on several occasions;

(iii) he admitted to touching her on her shoulders and on her side but he denies that he touched her breasts;

(iv) he accepts that she told him not to touch her; and,

(v) he had no intention of touching her breasts

[56] The question for me is, in the total circumstances that I do find, has the Crown proven beyond a reasonable doubt that this was contact for a sexual or carnal purpose. I believe the evidence falls well short of the standard of proof.

[57] The evidence of the complainant is actually quite consistent with the defendant's version of events. He was trying to get her attention. She did not wish to be touched (she did not accuse him directly of touching her breasts). There is no evidence that he was "groping" her or "rubbing" her or making any movement with his hand or fingers other than the simple touching with his hand over her shoulder (and onto her chest) and by her side (and touching the right side of her breasts).

[58] While his motive is not crucial to any finding, I cannot find any motive to commit a sexual assault in all of these circumstances. I specifically do not accept the Crown's assertion that because the defendant had been at a strip club and was touching women for money, that he somehow decided that the activity could continue with this complainant. I also do not accept the Crown's assertion that he was intentionally touching her breasts as a sign of his disrespect to her. It is implicit in my findings that he had no intention of touching her breasts, and did so as part of touching her shoulder to get her attention. I cannot find a sexual purpose in the totality of this evidence.

[59] That however does not end the matter. The issue remains whether, the conduct of the defendant, in touching the complainant (even if to get her attention) can be considered an assault. While there could be some argument about some implicit consent to some light touching in order only to get a person's attention, in this case, even the defendant agrees that he was told not to touch her at all. Any such implicit consent from that time forward would not be there. I find that he did touch her on the shoulder and on the side of her breast as he was trying to get her attention and put forward his credit card. He was aware that he had not permission to touch her at all.

[60] I find that fits the definition of an assault and I find him guilty of the offence of assault. I find him not guilty of the offence of sexual assault.

Released: April 20, 2018

Signed: "Justice P.N. Bourque"