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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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: 2018-09-07

Court File No.: Newmarket 17-09605

Between:

Her Majesty the Queen

— AND —

RRF

JUDGMENT

Evidence heard: July 3, 4, 5, 2018

Submissions: July 19, 2018

Delivered: September 7, 2018

Ms. Phyllis Castiglione ............................ counsel for the Crown

Ms. Megan Andrews ............................ counsel for the defendant

KENKEL J.:

Introduction

[1] On a return flight from training in Thailand, a 14 year old Muay Thai boxing student sat next to her coach on the plane. During the flight he suggested she put her head on a pillow on his lap. She fell asleep with a blanket over her. The coach put his arm around her. She said she awoke suddenly when her coach put his hand underneath her shorts and cupped her buttocks. She moved to show she was awake but otherwise didn't know how to react. Her coach quickly removed his hand. She was upset but didn't say anything, she simply got up and went to the washroom on the plane. Months later she told a therapist about the incident. She thought the discussion would be kept private but given her age the therapist was required by law to contact the police. RRF said he slept on the plane and he denied any inappropriate touching. RRF is charged with Sexual Assault s.271 and Sexual Interference s.151.

[2] The defence concedes that the complainant was a credible witness, but submits that her evidence is unreliable. The credibility of the remaining witnesses and the reliability of their evidence is the central issue at trial. The decision framework set out in R v WD, [1991] SCJ No 26 applies.

Analysis

[3] The defence submits that RRF had a lot to lose by committing a sexual assault. In addition to significant criminal prosecution and sanctions the accused would risk losing his coaching status in a sport he's devoted to. The defence submits that it's therefore highly improbable that the accused would have committed the offence. The fact that it's inherently unlikely that he would commit such an offence contradicts the evidence of the complainant and supports the credibility of the accused's evidence.

[4] The observation that persons generally don't commit crimes in part because of legal or social sanctions could be made in any case. That general observation does nothing to assist the specific inquiry in this case about whether the Crown has proved that this accused committed this alleged offence. Further, it's unfortunately not true that as compared to the general population persons with much to lose such as coaches, teachers, religious leaders are somehow specially unlikely to commit sexual offences.

[5] With respect to the plane seating on the flight to Toronto, the accused testified that it was hard for him to remember but it "started to come back" to him in the days before trial. He didn't remember seating or other details of the flight from Thailand to Seoul. On the flight to Toronto, "best he could remember" he sat in the middle with the complainant on the aisle and he thought a woman on the other side. He stated that "as far as he could remember" seats were just assigned and he didn't know how it came to be that he sat beside the complainant. In cross-examination the accused confirmed that he put some of his items in the complainant's bag. He suggested they keep together so he could put items in her bag if his was over the weight limit. This caused them to check in together so the fact that they sat together was not simply random as he had suggested.

[6] The accused confirmed the complainant's evidence that he was the one who suggested she lay down on a pillow on his lap. He confirmed that he put his arm around her on her shoulder as she slept. The fact that an adult male coach suggested this form of intimate contact with a 14 year old athlete is plainly inappropriate even considering the long distance nature of the flight. The accused provided no credible explanation as to why he suggested she rest in his lap with his arm around her. He denied that his purpose was touch her when she was asleep, but his suggestion did create that opportunity.

[7] The accused testified that he was sleeping when the complainant woke up, then she got up. His memory was also vague on this point. He did not remember if she went to the bathroom right after she woke up, but he did agree that after she woke she did not put her head down on his lap again. The complainant's evidence that she woke up then got up and went to the bathroom to get away from the accused is consistent with her complaint as is the fact that she didn't lay her head down on the accused's lap for the rest of the flight from that point onward.

[8] The defendant admitted in cross-examination that he was closer to the complainant than any other fighter in their gym. One of the senior club members AK who mentors the complainant testified about what she viewed as an unusually controlling relationship the accused had with the complainant. However, the evidence shows that in Muay Thai coaches may view certain students as "their" fighters, particularly those who compete. In that context the accused's view that the complainant was "his" fighter and his exercise of some control in that regard may be within the acceptable practice in that sport and I draw no negative inference from that circumstance.

[9] The defence submitted that the complainant was an unreliable witness. Her description of the incident was unlikely and there was no independent evidence that supports her account.

[10] The complainant testified that she and the accused were seated side by side in a two seat row. The complainant sat in the aisle seat with the accused beside her. The accused agreed she was in an aisle seat and agreed he was right beside her. He said there was a third seat and it was occupied. A woman named MR who was with this group walked past the complainant once during the long flight. She recalled seeing the complainant in an aisle seat beside the accused. MR also thought that there were three seats. The accused testified that there was nobody directly to the right of the complainant. There was a wall which may have been a washroom.

[11] The defence submits that the contradiction in the number of seats is enough to leave a doubt with respect to the reliability of the entire complaint. Further, if there was a third person in that row that fact makes the complainant's account improbable. The complainant's evidence that she sat in an aisle seat and sat beside the accused was confirmed. There may have been a third seat, but it's not plain it was occupied, or occupied at the time of the incident. The accused's weak memory does not provide a reliable basis for a finding in that regard. Even if that had been the case, the complainant was sleeping on the accused's lap. She had a blanket covering her and he had his arm around her. The circumstances do not preclude the action described while the complainant was sleeping. If anyone would see the grab or the complainant's reaction it would be those on the other side of the aisle closest to her, but on that flight there was a wall and there were no passengers opposite.

[12] The one circumstance that could reasonably cast doubt with respect to the allegation stems from these portions of the complainant's statement to the police:

Pages 59-60

COMPLAINANT … half the reason I know for sure I was awake, like not only from going to the – I went to the washroom, I looked in the mirror and I was just like – I was just shocked that this happened. And then I – I remember feeling the warmth of his hand and that's the main reason I know it happened, because that's the one thing I remember vividly …

(Further questions then …)

OFFICER Okay. And again, you said you were sure it happened. Is there any way you could have dreamt it?

COMPLAINANT No.

OFFICER [Inaudible] you were groggy or anything?

COMPLAINANT I remember keeping my legs really tight cause I didn't know – considering you could do that, I didn't know what he would do next. I didn't want -- I was just – I was a little scared cause I didn't know how to think -- I didn't know how to react. I didn't -- know what to do so I just -- I kept my legs really tight cause I was just kind of scared.

Page 71

OFFICER Okay, so that's what I wanted to clarify. I did ask you is there any chance that you were dreaming?

COMPLAINANT No, at first -- at first yes. Over time -- over – I kept thinking, thinking about it, and I was like thinking about our relationship, and just who he was to me like as a brother, a mentor, a coach, I was -- I thought I had to have been dreaming because I was like I don't even know how he could do that, how it could happen, but for all the vivid – like the little vivid things I remember – I knew deep down, and after taking to my therapist and I told her, it was like I don't know, like I don't …

OFFICER So in your mind now you are clear?

COMPLAINANT Now I know. Now I know.

OFFICER Okay.

COMPLAINANT Yes

OFFICER So did it happen or were you dreaming?

COMPLAINANT It happened.

OFFICER It happened?

COMPLAINANT I wasn't dreaming.

[13] I agree with the defence that the complainant's evidence on this point including her initial statement to the police must be looked at very closely. If there is a reasonable possibility that the touching she felt could have been a dream, or that her present certainty about the event could have been induced or affected by therapy that would leave a doubt with respect to allegations.

[14] The defence submitted that the complainant's statement and her evidence at trial show clearly that the therapist, "coaxed the memory out of her". There's no evidence that suggests this memory was created by the therapist. The complainant arrived at the therapist's office with a complete memory of the incident. She'd already told a friend prior to going to the therapist.

[15] The possibility that the complainant dreamed the event was introduced by the officer during the complainant's statement and raised again later on. Those questions were reasonably asked given the complainant was sleeping when she says the accused reached under her shorts to cup her buttocks. The complainant's statement and her evidence at trial were consistent on this point – that she knows what happened to her and she was not dreaming. The accused's action left a vivid impression in her memory because of the direct physical experience of the warmth of his hand which woke her suddenly and caused her to react by closing her legs.

[16] Defence submissions noted the second discussion on this point where the complainant discussed whether it, "had to have been a dream". The whole of that discussion in context is consistent with her evidence on this point at trial. She didn't know how to react at being touched. She was shocked and felt disbelief that an adult she trusted so deeply could touch her in a sexual manner. She entertained the notion that maybe it had all been a dream so that things could continue along as they had been, but "deep down" she always knew that it had happened. She knew it happened when she got up right afterward and went to the washroom. As she explained at trial, her questions to herself were not really about whether it happened but about how something like that could happen.

[17] The complainant testified that she regretted mentioning this incident to her therapist. She didn't want her world to change because of that incident but she needed to speak about it and has since realized that doing so "lifted a weight off her shoulders". She had a close relationship with her coach and she mentioned at trial that she didn't want his life to be ruined. Since the incident, she's lost a relationship that was important to her and she's stopped participating in the sport where she'd enjoyed so much success. There's no evidence of any motive to fabricate that would detract from the reliability of the complainant's evidence.

[18] Beyond suggesting that the complainant sleep on his lap, there are several other instances where the accused did not respect coach/player boundaries:

Movie Night – The accused's memory was vague on this point but he agreed with the complainant's evidence that he set up a movie night at her house, then he learned others weren't coming. He decided to continue on to the complainant's house. They watched the movie together on a couch. Nothing inappropriate happened, but this began regular contact beyond the coaching relationship through which the accused became viewed by the complainant and her mother as a trusted part of their family.

The Massage – One time the accused picked up the complainant and drove her to a different gym. They arrived before the gym opened so they were alone in the facility. The accused suggested to the complainant that he give her an oil massage prior to training. While Thai boxing does use a heating oil on fighters immediately before competition, experienced club members AK and MR confirmed that such massages are for competitions only, not for young girls who are alone with their coach in a gym. A pre-fight massage is brief, to warm up muscles. The circumstances and length of the massage described by the complainant is inconsistent with that practice. The accused's explanation that the massage was solely for a coaching or athletic purpose is not credible in the context of all of the evidence.

The Food Market – In Thailand at a food market the accused spent time alone with the complainant and shared food with her, not by giving it to her but by feeding her directly. That's an intimate gesture that might be acceptable between a parent and a small child or occasionally by persons dating, but it's plainly inappropriate between a coach and athlete. MR saw it from across the market and thought it odd. While the fact that he was alone with the complainant and feeding her in that manner did not cause MR to intervene, it's another example of the accused's disregard of boundaries in his relationship with this young student. The accused testified that he didn't recall the event clearly, but his suggestion that he comes from a particularly affectionate culture was a not credible explanation.

[19] The circumstances of those incidents together show that the accused had a personal, intimate interest in the complainant beyond the coach/athlete relationship in the gym. I find those incidents and the circumstances of the flight where the accused suggested the complainant sleep in his lap support the credibility of the complainant's evidence and detract substantially from the credibility of the accused's evidence regarding the alleged offence.

[20] The complainant testified in a straightforward manner. Her testimony was detailed and internally consistent. Most of her evidence was consistent with the external evidence at trial with the exception of whether there were two or three seats in her row. She responded well in cross-examination, particularly given her age. She had a detailed memory and I agree with both parties that she was a credible witness. The whole of the evidence shows that her recollection including her account of the events on the flight home to Toronto was reliable.

[21] The accused repeatedly had trouble remembering the various events in question. His explanations for the incidents during his relationship with the complainant were not credible. His evidence with respect to the events on the flight was not credible and was directly contradicted by the circumstantial evidence and the credible evidence of the complainant. RRF was not a credible witness and I cannot accept his evidence. I find his testimony does not leave a doubt either alone or in combination with any other evidence.

Conclusion

[22] Considering all of the evidence heard at trial, I can find no credible evidence that could reasonably leave a doubt. I find that the Crown has proved the offences alleged beyond a reasonable doubt.

Delivered: September 7, 2018

Justice Joseph F. Kenkel