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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: February 9, 2018

Court File No.: Toronto College Park 16-75005091

Between:

Her Majesty the Queen

— and —

B.F.A.

Before: Justice J.W. Bovard

Heard on: November 8, 2017; January 19, 2018

Reasons for Judgment released on: February 9, 2018

Counsel:

• Mr. E. Akriotis — counsel for the Crown
• Mr. A. Goodman — counsel for the accused

Reasons for Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for judgment after the trial of B.F.A. on one charge of sexual assault simpliciter on E.B. (s.271 Criminal Code), and one charge of being a person in authority to E.B., a young person, touch a part of her body for a sexual purpose (s.153 (1.1) of the Criminal Code).

[2] In August 2016 when Ms. B. was a 16 year-old high school student, she applied for a part time job at Mr. B.F.A.'s pharmacy. She had a training session which was positive and he hired her to start work the next day. While she was working behind the counter with him the next day she alleges that he grabbed her buttocks one time. Mr. B.F.A. denies this.

The Issues

The issues are the credibility and reliability of Mr. B.F.A. and Ms. B. and whether Mr. B.F.A. was a person in authority with regard to Ms. B.

The Evidence

[3] The defence admits that on the day in question at 4:37 PM, Ofc. Dennis Innes went to Y[…] Pharmacy at Q[…] Street East in Toronto and spoke to Mr. B.F.A. who appeared to be working there as a pharmacist.

[4] Ms. B. is currently 17 years old and is in grade 12. In August 2016 when she was 16 years old, she and her boyfriend and one of his friends walked by Y[…] Pharmacy on Q[…] Street East. They saw a "help wanted" sign and decided to go in to apply for the job.

[5] Ms. B. spoke to Mr. B.F.A. about the job. He told them to leave their contact information with him and he would get back to them. She was the only one of the three that left her phone number. The other two agreed that they would contact Mr. B.F.A. through Ms. B. and vice versa. Then they all left.

[6] The next day, at 11 AM, Mr. B.F.A. called Ms. B. to come in for a training session between 3 PM and 6 PM.

[7] He told her that he was not going to hire either her boyfriend or his friend. Mr. B.F.A. told her that his boss told him that they would be only hiring girls because they stayed at the job longer than the boys. Also, the boys ask for a raise sooner than do the girls.

[8] Ms. B. went to the training session which lasted from 3 PM to 6 PM. When she arrived Mr. B.F.A. was training another girl. Ms. B. was the only trainee during her training session. She gave Mr. B.F.A. a copy of her resume. He asked her who she lived with and whether she was dating anyone.

[9] During her training she worked behind the counter with Mr. B.F.A.. He was talking to customers and standing beside her working on a computer. There was enough space behind the counter for two persons to comfortably walk by each other. During her training she and Mr. B.F.A. passed behind each other but no contact was made between them.

[10] At the end of her training he told her that he would hire her. She was to return the next day, August 25, 2016, to work from 11 AM to 3 PM. They agreed to a salary of $14 per hour, which in his opinion was not a high salary. In addition, Ms. B. fit into his requirements better than the other two trainees, who were also girls.

[11] Ms. B. arrived the next day at 11 AM. Mr. B.F.A. was alone in the store. She and Mr. B.F.A. worked behind the counter. As the day before, Mr. B.F.A. was working on a computer and speaking with customers. In doing this he moved around the store. She stayed behind the counter.

[12] Ms. B. said that it was possible that her boyfriend picked her up for lunch. She was not sure what time that would have been. She did not mention this to the police. She testified that after lunch her boyfriend would have gone home.

[13] She returned to work at around 1:40 PM. She continued to work behind the counter as before. As she was working, Mr. B.F.A. walked behind her and grabbed her buttocks over her skirt with one hand for "no longer than two seconds".

[14] In her statement to the police the next day, she said that it was one second. In cross-examination, she testified that she did not recall how many seconds the grab lasted but "it was a short amount of time". Defence counsel counted out "one one thousands, two one thousand" and asked her "if there's somebody touching me would you agree with me that's not a short amount of time". She agreed that it was not a short amount of time, but when Mr. B.F.A. touched her it was a short amount of time.

[15] He had passed behind her before on that day but had not touched her. But she was certain that he grabbed her and did not just accidentally brush by her. She told the police that it was not a case of him just accidentally brushing by her.

[16] She conceded that it was possible that one could walk by and brush the other. She told the police that there was not a "ton of room behind the counter" but there was enough room to walk by each other without touching. Up to the point of touching, they had worked together behind the counter for three hours during her training and for two hours on the day in question without having any contact.

[17] She told the police that she wanted them to charge Mr. B.F.A.. Up to that point the police had not mentioned that they were going to charge him.

[18] After Mr. B.F.A. grabbed her she took her bag and walked out of the store. She told him that she did not think that she could work there anymore. He did not say anything.

[19] She went to her boyfriend's house nearby and called her parents. She spoke to her father who came and picked her up. Later, when her mother got home she told her what happened. She also spoke to the police on the same day. She gave a video tape statement at the police station.

[20] In her statement to the police she said that she was close to the cashier when Mr. B.F.A. grabbed her. However, she testified that this is not correct. She was in her normal spot behind the counter. Exhibit 4 is a picture with an "X" marked on it where she says she was standing when Mr. B.F.A. grabbed her.

[21] Ms. B. said that F. picked her up for lunch, but he did not drop her off at the pharmacy after lunch. She thought that he just went home after lunch. She was not sure if he was inside of the pharmacy that day. But she stated that F. did not go to the pharmacy and start talking in a loud voice and being rude after she left after Mr. B.F.A. grabbed her buttocks.

[22] Nor was F. in the pharmacy between the time that she returned from lunch and when she left after Mr. B.F.A. grabbed her buttocks. She was not talking with F. in the pharmacy at this time.

[23] Ms. B. denied the defence counsel's suggestion that her boyfriend came into the store and was being rude and that Mr. B.F.A. lost his composure because of it and fired her. She also denied that he threw her bag at her and told her to get out of the store. She denied that Mr. B.F.A. embarrassed her and that she was upset at being fired, which led to her making a false allegation that he grabbed her buttocks.

[24] That was the case for the Crown.

[25] Mr. B.F.A. testified that he is a pharmacist. He purchased Y[…] Pharmacy on August 5, 2016. He does not have a criminal record. He is 45 years old. He is married and has four children.

[26] Mr. B.F.A. needed an assistant to help him in the pharmacy so put up a "help wanted" sign. Approximately twenty to thirty persons applied for the job. Ms. B. and her two friends applied but they did not have resumes at the time. Only Ms. B. left a telephone number with him. It is not clear if they left other type of contact information. Mr. B.F.A. said that "they agreed to contact them through E.".

[27] Mr. B.F.A. called Ms. B. to ask her to come in the next day for training. She returned the next day with her resume. This impressed Mr. B.F.A. because it indicated that she was serious about the job.

[28] Mr. B.F.A. said that he was interested in hiring a girl to fill the position because he has worked in many places in Ontario and has seen that this is what pharmacists usually do. He explained as follows:

it is very common in between pharmacists that girls are ambitious but not as much as boys and it is very common in between pharmacists that a boy will be working for you in the pharmacy, from the very first moment he will be looking for another big change to get paid more or to find more hours. And as I told you from the very beginning the business was very new. I was opening files with ... with all organizations that you can imagine, with all insurances that you can think of and I was not sure if I can afford to pay a full-time or big payments, that's why I prepared a girl that is ... [Ms. E.B.] was a very ideal case.

[29] In addition, he felt that his clients were used to seeing a woman as the pharmacist's assistant. The previous pharmacist always had a female assistant, in addition to his son, who was a pharmacy student to help him in the pharmacy.

[30] Mr. B.F.A. discussed this hiring policy with his wife and she agreed "100 percent".

[31] Mr. B.F.A. had two other trainees the day that Ms. B. came in for her training. Ms. B. impressed him during her training. He saw that she was a fast learner and did more than what he asked. He described her performance during her training as follows:

She gets the point very fast of checking the DIN number, the Drug Identification Number, of the print out and grabbing the stock bottles from shelves that are arranged alphabetically. She was so accurate but fast in her counting. She was also going further than what I am asking for. She was checking the expiry date on the stock bottles and she was writing them on the prescription, on the hard copies. By the end of the ... and she was also very good in estimating the size of the bottle needed to fill these tablets or capsules. By the end of the training I told her you're the most suitable person for that job.

[32] Based on her performance he told her that he would hire her as his assistant. He said that there are no formal educational requirements to be a pharmacist's assistant, as opposed to a pharmacist technician.

[33] In addition to her performance in training, Mr. B.F.A. liked that Ms. B. lived in the neighbourhood with her parents, a younger brother and that they had a dog. This indicated to him that she came from a stable family.

[34] He asked Ms. B. if one of the boys that applied for the job with her was her boyfriend. He commented that her boyfriend spoke in a very loud voice, which bothered his clients.

[35] At about 12:30 PM on Ms. B.'s first day of work her boyfriend, F., came to the store to speak with her. She was standing in the area where the cash register is and spoke to him across the counter. F. spoke in a very loud voice. Mr. B.F.A. was dealing with a client and was having difficulty hearing what the client was asking him and had to keep asking him to repeat himself.

[36] Mr. B.F.A. asked F. to lower his voice. He also asked Ms. B. to ask her boyfriend to lower his voice but she would not. He told her to take her lunch break. He got upset at her and grabbed her backpack and pushed it against her and told her not to return until he called her. Mr. B. left with F.

[37] One and a half hours later, F. returned and told Mr. B.F.A. that he had fired Ms. B. and that either he gives her the job back or he should hire him. Mr. B.F.A. refused to do so. F. then brushed off the items on three or five shelves, knocking them to the ground. Then he left the pharmacy. This would have been captured on the store's surveillance video tape.

[38] Mr. B.F.A. said that "it is a very small place" and that it was possible that he touched Ms. B., but he did not because it is not the kind of thing that he does.

[39] There is a surveillance video camera in the store, but he was not sure if the surveillance camera captured the area where he and Ms. B. were standing when he pushed her backpack towards her and told her to leave.

[40] He has access to the tapes before they automatically erase after 30 days. The police arrested him on August 31, 2106. He had 24 days from then to check the tapes before they automatically erased. He did not check the tapes. He said that he did not review the footage because he had just bought the pharmacy and was too busy with all of the things that had to be done to establish his business. He also said that he is not familiar with technology. In addition, he thought that Ms. B. and F. would go to the police and "correct themselves".

[41] But he also said that it did not occur to him to check the tapes because "I'm sure of myself and I know that I don't do that, and nothing happened. So it did – didn't even came – came to my mind".

[42] Mr. B.F.A. said that when he grabbed Ms. B.'s backpack and pushed it against her she was in the "wide cash area" of the store. At first, in cross-examination, when the Crown asked him if the surveillance camera filmed the cash area of the store, he responded "Exactly". Then during more cross-examination regarding the areas of the store that the camera films, the Crown asked him:

Q. And when you pushed the backpack into, [Ms. B.] you already testified she was standing in the cash area?

A. Yes.

Q. So that would have been captured on camera … correct?

A. I'm not sure but better chances than when she is inside the dispensary.

[43] It appears that he went from being pretty certain that the surveillance camera captured the cash area of the store to being "not sure".

[44] He further explained that:

But I'm not sure if she was – or that location was captured on the camera or not, but highly possible, much more than when she is inside the dispensary. Because inside the dispensary is so far from the – the camera frame, as per the pictures that Mr. Goodman shared last time.

[45] Then he said that he was not sure if the camera captures the cash area. Then he told the Crown that it did. His evidence on this is highly inconsistent.

[46] Mr. B.F.A. denied that he was physically attracted to Ms. B., but she was an attractive candidate for the position that he was trying to fill. She was punctual, intelligent, followed instructions well and performed her duties above and beyond what he expected. In addition, she was returning to school soon and, consequently, he was confident that she would not ask him for more hours or a raise in pay.

[47] He asked her whether F. was her boyfriend because he did not want him around the store. He had a very loud voice and he felt that it was bad for business to have him hanging around. He was afraid that it would bother his customers, many of whom are old and infirm. He also saw this question as small talk or an ice breaker when he was getting to know Ms. B. before he started to instruct her regarding her employment responsibilities.

[48] He could not remember if he asked "everybody" whether they had a boyfriend. But there is no evidence that he had similar issues with the other applicants' friends as he did with F. regarding whom in addition to his loud voice he had the following concerns:

I was wishing from my full heart and also praying that her answer would come that she doesn't know F. F. – if you don't mind, I just want to say two things. F. visited the pharmacy a lot. Recently, he started to be less aggressive, but I told Mr. Goodman at my very first visit, what my fears are of F., but I'm not reporting it because I don't want to make trouble or complicate the...

[49] He said that "F. came in the same night they applied, by himself. And he came in in the morning by himself. And, later on, he came into the pharmacy for aggressive, destructive behaviour, a lot".

[50] Mr. B.F.A. said that when Ms. B. and her friends were filling in forms for their job applications F. was moving the shelves. Although he did not break anything he "was opening the gates, wildly, then closing them. Then raising a shelf with its content and putting it back". Then moving fast from - through two guys both attending in the over the counter section from side to side, so fast, so loud".

[51] When the Crown asked him if he was jealous of F., Mr. B.F.A. replied:

Not at all. Not at all. Not even a chance. He is young boy with that skating board, that – all the time in the middle of Q[…] Street, a busy area. Coasting forward and backward. He's everywhere at any time.

[52] That was all of the evidence.

The Position of the Crown

[53] The Crown's position is based on the premise that Mr. B.F.A. was motivated by a prurient interest in hiring Ms. B., who he thought was pretty and to whom he was physically attracted. And that this attraction led him to sexually assault her. The Crown argued that "this elicit (sic) attraction that existed is corroborated by what I submit is fixation on this relationship with this boy that she was with".

[54] In support of his position the Crown cited several factors. The Crown maintained that it is suspicious that Mr. B.F.A. chose Ms. B. over the other 20 to 30 applicants. He said that she did not even provide a resume. However, Mr. B.F.A.'s evidence was that although she did not have a resume on the day that she applied for the position, she brought one when she came in for training the next day. This was before Mr. B.F.A. selected Ms. B. as the successful candidate for the position.

[55] The Crown stated further that Mr. B.F.A. did not explain why Ms. B. was a sufficiently attractive candidate to warrant asking her to come for training. However, one can infer from Mr. B.F.A.'s testimony about the desirability of hiring girls and his assumption that Ms. B. would be returning to school after the summer that this caused him, at least in part, to invite her to come for training. I note that he also asked several other girls to come for training so it is not a situation where Ms. B. was the only one. This attenuates the argument that he was fixated on Ms. B.

[56] The Crown pointed out that Mr. B.F.A. did not ask any of the other girls who came in for training whether they had boyfriends. However, that is not a completely accurate characterization of his evidence. He testified that he could not remember if he asked "everybody" whether they had a boyfriend. In any case, there is no evidence that he had similar issues with the other applicants' friends as he did with F.

[57] Mr. B.F.A. testified that he asked Ms. B. if F. was her boyfriend because he had concerns with F.'s behaviour. The Crown tried to rebut this by arguing that rather than asking her if F. was her boyfriend, the more proper question would have been "do you two know each other, are you two friends …".

[58] I find that it was reasonable for Mr. B.F.A. to enquire as he did because if F. were her boyfriend it would mean that he would likely be around the pharmacy more than if he were just a friend, or if they were not friends at all. Given Mr. B.F.A.'s issues with F., it makes sense that he would try to determine the exact nature of their relationship in order to gauge the consequences of hiring her.

[59] The Crown pointed out that in his testimony Mr. B.F.A. frequently referred to the issue of whether F. was Ms. B.'s boyfriend:

This apropos of nothing, he keeps bringing up that he knows the truth, that F. is her boyfriend. I find that – I submit that that's very strange, it's inappropriate and it's corroborative of what I submit is Mr. B.F.A.'s attraction to Ms. B. that motivated him to hire her in the first place, that motivated him to bring her in for training, and that motivated him to touch her for a sexual purpose.

[60] I agree that Mr. B.F.A. referred to this issue frequently in his testimony. However, I do not think that it incriminates him because he gave a reasonable explanation for his interest in Ms. B. and F.'s relationship.

[61] With regard to the surveillance video, The Crown questioned Mr. B.F.A. meticulously regarding why he did not look at the surveillance video in an effort to corroborate his account of what happened. It would have been a logical thing to do. Mr. B.F.A. gave reasons that perhaps not everyone would agree were the best in the circumstances for not looking at the video. However, his reasons are not patently unreasonable or incredible. I accept them.

[62] In any case, requiring Mr. B.F.A. to examine the video in order to exculpate himself would be asking him to prove that he is not guilty. That is the Crown's job. The Crown conceded that the police could have obtained the video, but they did not. I cannot reverse the onus on Mr. B.F.A. by expecting him to produce evidence to exculpate himself. Nor can I hold it against him at trial that he did not obtain or view the video. That would be reversing the onus against him also.

[63] With regard to Ms. B.'s testimony, the Crown submitted that her evidence was not undermined in any way. I agree that her in general her evidence was well delivered. She told a simple, plausible story. There was, however, a part of her testimony that caused me concern.

[64] She had a very good memory regarding the details of applying for the position, her training and her interactions with Mr. B.F.A.. But she was inconsistent with regard to whether F. came into the pharmacy on the day in question. At one point she testified that she was not sure if he was in the pharmacy that day. But she appeared to catch herself right away and said that he was not in the pharmacy before or after the grabbing. I found this to be inconsistent. This is an important point because Mr. B.F.A. said that F. came into the pharmacy and caused a disturbance that led to him firing Ms. B.

[65] In any case, I have to consider all of the circumstances, including the defence evidence, in assessing whether the Crown proved the charges beyond a reasonable doubt.

The Position of the Defence

[66] The defence argues that "the crux of this case … is a simple and straight W.(D.) analysis. Ms. B.'s evidence cannot be trusted because she told the police that she wanted them to charge Mr. B.F.A.. In addition, she admitted that it was possible that an accidental brushing could have occurred, but without being asked she stated that the grab could not have been an accidental touching.

[67] The defence argues that Mr. B.F.A. never grabbed Ms. B. She claims that he did because she is upset that he fired her. The defence concedes that Mr. B.F.A.'s testimony was credible, if at times a bit strange:

Perhaps because he's a strange guy, he testified in a strange way. But, realistically, his evidence was he bought a pharmacy, some people came in to apply, he got some applications, he picked some people, he trained them, one person came in, he liked that person for whatever reason, and he trained her. He had an issue with her boyfriend. Again, for whatever reason. He's a teenager, might make some sense, and there was an altercation that happened, that caused him to fire her. That – even alone that raises reasonable doubt and it's, in my respectful submission, really not something that my friend's been able to get to the point of that should cause this court to disbelieve it, or at least find it doesn't raise a reasonable doubt. That's the essence of my submission.

Disposition

[68] The issue in this case is the credibility and reliability of the complainant and of the accused. The law in cases where credibility at issue is stated in D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[69] In Nadeau v. The Queen, 15 C.C.C. (3d) 499, @501, the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events].

[70] And in R. v. Nimchuk, 33 C.C.C., (2D) 209, the Ontario Court of Appeal said that, "if reasonable doubt existed in view of conflicting testimony, as to where exactly the truth lay, it would of course, require an acquittal."

[71] After considering all of the circumstances, the law and counsels' submissions, I find that I do not necessarily believe Mr. B.F.A.'s testimony, but neither do I necessarily believe Ms. B.'s testimony. Moreover, Mr. B.F.A.'s evidence, in conjunction with all of the other evidence raises a reasonable doubt in my mind with regard to whether he sexually assaulted Ms. B. Given this finding, I do not have to decide whether he was in a position of trust regarding Ms. B. Therefore, I find him not guilty of all the charges.

Released: February 9, 2018

Signed: Justice J. W. Bovard