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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

CITATION: R. v. Schnarr, 2019 ONCJ 196

DATE: 2019 03 27

COURT FILE No.: 18-1649

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ERIC SCHNARR

Before Justice G.L. ORSINI

HEARD February 25-28, 2019

Reasons for Judgement released on March 27, 2019

Jason Nicol and Katherine Beaudoin........................................... counsel for the Crown

Danielle Robitaille and Karen Heath.................. counsel for the accused Eric Schnarr

ORSINI J.:

Introduction

[1] The defendant, Eric Schnarr, is accused of sexually assaulting B.M. at an Oktoberfest celebration in Kitchener, Ontario on October 14, 2017.

[2] It is alleged that the defendant, who was previously unknown to B.M., deliberately brushed his finger(s) against the inner portion of her left thigh as he cut through her group of friends in a crowded beer tent. According to B.M., the touching commenced just above her knee and ended just below her crotch area. Although she did not actually see the defendant's hand make contact with her, she believes that this is what occurred. No one else witnessed the touching.

[3] In addition to B.M., the Crown called eight witnesses in support of the charge. They included several friends who were with B.M. at or about the time the touching is said to have occurred, as well as uniformed police officers who were working at the event and who had made observations of the defendant throughout the evening.

[4] With the consent of the defence, the Crown also filed a transcript of the video recorded statement of a ninth witness, a security guard who escorted the defendant from the building due to his level of intoxication.

[5] The accused did not testify.

[6] No issue was taken with the fact that B.M. was touched in the area she described, without her consent. For that matter, no real issue was taken per se with the sexual nature of the touching if it is found to have been deliberate.

[7] Instead, the defence submits there is evidence from which I can reasonably conclude that B.M. may have been accidentally touched by either the defendant's hand or by his jacket which may have been tied around his waist.

[8] In either case, the court is called upon to determine what, if any, reasonable inferences may be drawn from the evidence or absence of evidence in relation to the defence of accident. Given the circumstantial nature of the evidence, I must also be satisfied beyond a reasonable doubt that the defendant's guilt is the only reasonable conclusion that can be drawn from the whole of the evidence.

[9] As such, the issues in this case may be stated as follows:

(i) Is it reasonable to infer from the evidence or absence of evidence that the defendant's jacket, and not his fingers, inadvertently made contact with B.M.'s inner thigh from just above her knee to just below her crotch area?; and

(ii) If the only reasonable inference is that contact was made by defendant's hand, is it reasonable to infer from the evidence or absence thereof that the touching was accidental as opposed to deliberate?

[10] In the context of a criminal trial is important to remember that the Crown always bears the burden of proving its case beyond a reasonable doubt. The defendant does not have to prove that the touching was an accident. It is for the Crown to satisfy me beyond a reasonable doubt that what happened was not an accident.

Issue 1: Is it reasonable to infer from the evidence or absence of evidence that the defendant's jacket, and not his fingers, inadvertently made contact with B.M.'s inner thigh from just above her knee to just below her crotch area?

[11] As indicated above, neither B.M., nor any of the other witnesses who were present at the time, actually witnessed the defendant's hand touch her thigh. This of course is not a criticism. It is also not surprising. On her evidence, the touching was brief and occurred in circumstances that neither she, nor those in her immediate surroundings, could have anticipated.

[12] It is also noteworthy that the defence does not challenge B.M.'s credibility. They do not dispute she was touched in the area she described and concede that she honestly believed that the defendant deliberately used his finger(s) to do so.

[13] For the reasons that follow, I am satisfied that the Crown has proven beyond a reasonable doubt that the defendant's hand or one or more of his fingers came into contact with B.M.'s thigh in the manner described by her. Having considered all of the evidence, I am not left with a reasonable doubt in this regard. I find the suggestion that the touching may have been inadvertently caused by the defendants jacket to be a matter of speculation or conjecture.

[14] B.M. was a credible witness. She did not attempt to exaggerate or embellish what she perceived as having occurred on the night in question. Her evidence in this regard was consistent throughout.

[15] According to B.M., she and several of her girlfriends met at her sister's residence where she had "a couple" of mixed drinks a few hours prior to attending the Oktoberfest event. They arrived at the event, which was held at the Concordia Club in Kitchener, at approximately 9:00 p.m.

[16] Following their arrival at the Concordia Club, B.M. and three of her friends remained in the main dining hall for up to an hour where they consumed two pitchers of beer. B.M. estimates that she may have had approximately two glasses of beer during that time.

[17] She and her friends then made their way to the beer tent attached to the main building. She acknowledged consuming more alcohol while in the beer tent prior to the incident in question. She testified that she was not drunk at the time of the incident but candidly acknowledged she would probably not have been able to safely drive a car.

[18] At approximately 10:30 p.m., she was speaking with her friends when she observed the defendant approaching her group. She described him as wearing a blue T-shirt. Neither she nor any of the other witnesses were able to say that he was wearing a jacket tied around his waist.

[19] She described how he cut through the group. She said he made an utterance as he approached her. She candidly acknowledged that she did not hear what he had said and conceded that he may have been speaking to individuals standing behind her.

[20] B.M. testified that as the defendant continued toward her and ultimately past her, she felt something brush up against her inner left thigh commencing just above her knee and ending just below her crotch area. She felt what she believed to be one or two fingers of the defendant's left hand. She said that as this was occurring, the defendant leaned into her and said, "What. You don't like cops?"

[21] At the time, the defendant was in fact an off-duty police officer with the Waterloo Regional Police.

[22] B.M. immediately took a step backward. She then turned to her friend, N.C., who was standing next to her. She told Ms N.C. what had just occurred, including what the defendant had said. This was confirmed by Ms. N.C. and formed the basis of an Application by the Crown to have B.M.'s statement to Ms. N.C. admitted pursuant to the spontaneous utterance exception to the hearsay rule.

[23] In my view, the admissibility of B.M.'s statement to Ms N.C. as an exception to the hearsay rule is a moot issue.

[24] As indicated by Professor Wigmore, spontaneous utterances are those which are "made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection". It is for this reason, according to Wigmore, that such statements are considered a reliable expression of "the real tenor of the speaker's belief as to the facts just observed". (see Wigmore on Evidence (Chadbourn Rev. 1974), vol. 6, section 1747)

[25] As indicated above, I find B.M. to be a credible witness. In addition, the defence concedes that B.M. truly believed the defendant deliberately touched her while saying "What. You don't like cops?" In short, the purpose for admitting the statement i.e., as support for B.M.'s honestly held belief at the time of the touching, has been conceded by the defence and is accepted by this court.

[26] As the defendant continued past B.M., he began speaking to several uniformed officers standing behind her. B.M. pointed him out to Ms. N.C.. According to Ms N.C., the defendant was carrying on as though nothing had happened.

[27] At that point, Ms. N.C. took it upon herself to take a photograph of the defendant as he was speaking to the uniformed police officers. By all accounts this was taken almost immediately after the touching occurred. The photograph shows the defendant wearing a blue short-sleeved shirt. The lower half of his body is not visible. No jacket is observed.

[28] The only evidence that the defendant was wearing a jacket came from Detective Sproule of the Waterloo Regional Police Service, who was also on paid duty at the club that evening. She assisted in escorting the defendant off the property at approximately 11:30 PM due to his level of intoxication. She testified that at that time, he was wearing a jacket covering his upper body with the hood pulled up over his head.

[29] At no time did Detective Sproule give evidence that the defendant was wearing a jacket tied around his waist.

[30] Although it was suggested in cross-examination of B.M. that such evidence would be forthcoming, no such evidence was ever presented. I also note that four other uniformed officers testified as to their involvement with the defendant on the evening in question. None of them could recall whether the defendant had a jacket, let alone one that was tied around his waist.

[31] In spite of this, the defence urge me to find that the defendant may have been wearing his jacket around his waist and that this may have been what B.M. felt when the defendant leaned into her. The defence submits that this is a reasonable inference given the defendant clearly had a jacket that evening and was not, as evidenced by the photograph, wearing it on his upper body almost immediately after the touching occurred.

[32] The evidence as to what actually touched B.M. is circumstantial. No one actually saw it. In order to find that it occurred at the hand of the defendant, I must be satisfied that this is the only reasonable inference to be drawn from the available evidence.

[33] In this context, it has been said that a reasonable inference consistent with innocence need not be based on proven facts and can arise from an absence of evidence. (R v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 35; R v. Bui, [2014] O.J. No. 4003 OCA at para 24-25) At the same time, a reasonable inference must be distinguished from conjecture or speculation.

[34] Although it is often difficult to define when the line is crossed between speculation and reasonable inference, as indicated by Justice Cromwell at paragraph 38 of Villaroman, "... [T]he basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty".

[35] Although there is evidence that the defendant possessed a jacket on the evening in question and was not wearing it on his upper body at the time that the touching occurred, I find that it is not reasonable to infer from this that he was wearing it around his waist at that time.

[36] In this regard, the absence of evidence is telling. No less than ten witnesses who had contact with the defendant on the night in question were able to place a jacket around his waist at any point in time. I note that these witnesses were able to give other detailed evidence with respect to the defendant's demeanour, his level of intoxication, various utterances made by him and, to a certain extent, other clothing that he was wearing. In light of this, I find the above-noted absence of evidence makes the suggestion that the defendant was wearing a jacket tied around his waist a matter of conjecture – something which the Crown is not required to negate.

[37] The defence submits that the decision in Bui supra, should lead to the opposite conclusion. While Bui dealt with an inference that arose in circumstances where there was an absence of evidence, in my view, the circumstances in Bui are distinguishable.

[38] In Bui, the question was whether individuals other than the accused could have been responsible for the marijuana grow operation located in a residence jointly owned by him and his wife. The court found that the circumstantial evidence, which included the presence of prescription pill bottles in the names of several individuals, sparse furnishings, limited food and a large number of marijuana plants, gave rise to the reasonable inference that more than one person was involved in the grow operation. The court found this to be a reasonable inference despite a total absence of direct evidence, including surveillance evidence, which placed persons other than Mr. Bui at the house.

[39] In my view, the facts of this case would be more analogous to those in Bui if there was some evidence that the defendant, at some point in time, had his jacket tied around his waist. This could then be said to form the basis for the theoretical possibility that he was wearing his jacket in this fashion at the relevant time despite the absence of any direct evidence on this point. Put another way, having possession of a jacket on the night in question is not, standing alone, an evidentiary basis upon which to reasonably conclude that he had the jacket tied around his waist at the relevant time.

[40] Leaving aside whether the defendant was wearing a jacket tied around his waist, I also find it is not reasonable in the circumstances to infer that this could account for what B.M. felt.

[41] Her evidence on this point was also telling. She described what she felt to be a finger or fingers touching her. She described the degree of pressure as a two out of five which she felt going upward towards her vagina. She stated, "I don't think a jacket could touch me like that".

[42] Leaving aside the reasonableness of her belief, I note that no jacket was ever tendered into evidence. While a jacket was shown to Detective Sproule, purporting to be that worn by the defendant on the night in question, no evidence confirmed that this was in fact the case.

[43] In light of the above, I find there is no basis upon which to reasonably infer the touching could have been caused by a jacket.

[44] Having reviewed all of the evidence, I am satisfied that the only reasonable inference to be drawn is that the touching occurred at the hand or fingers of the defendant.

Issue 2: Is it reasonable to infer from the evidence or absence thereof that the touching was accidental as opposed to deliberate?

[45] Again, the Crown bears the burden of proving that the touching in this case was deliberate. Given the circumstantial nature of the evidence I must be satisfied that there is no other reasonable explanation available on the whole of the evidence.

[46] The Crown submits that the defendant's utterance at the time of the touching i.e. "What. You don't like cops?" is highly persuasive if not determinative. The Crown submits that this, together with the fact that the defendant leaned in towards B.M. when the touching occurred, leads to the inescapable conclusion that the touching was deliberate and not accidental. The Crown further submits that there is no basis in the evidence upon which to reasonably infer the touching was accidental.

[47] The defence submits that while B.M. was an otherwise credible witness, her evidence with respect to what the defendant said is not reliable. The defence points to evidence with respect to the noise level in the beer tent, which was occupied by as many as 3000 people with a band playing in the background.

[48] The defence also points to evidence that B.M. herself questioned whether the defendant's conduct was deliberate.

[49] Given my findings with respect to the credibility of B.M., I am satisfied that her evidence as to what the defendant said is also reliable. She candidly acknowledged not being able to hear the defendant's first utterance. She indicated that as he got closer, he leaned into her as if to whisper in her ear. This, according to her evidence, is when the utterance and the touching occurred. She did not know the defendant was employed as a police officer. She said she had no difficulty in hearing what he had said.

[50] With respect to B.M.'s perception of the defendant's conduct, the defence points to her statement to Detective Murray of the Special Investigations Unit on October 19, 2017. In that statement, Detective Murray asked B.M. to rate the defendant's level of intentionality on a scale of 1 to 10.

MURRAY One being no intention whatsoever and it was just a brush by as he went by, to ten being that guy stopped, brushed up my leg and my vagina, and then carried on.

B.M. Ten

MURRAY Ten being that.

B.M. Yeah. 10, like, I think that he was completely – I mean, I've debated this in my head, too, like, oh, my gosh, like, did he mean to do that, did this, and, like, did that happen? And I'm, like, well, he stopped. Like he didn't just keep going and he, like, stopped. Like, why – why would he say, like, oh, what, you don't like cops. Like, I've – I've debated this in my head, like, oh man it was not intentional. Maybe it was, like, not right, but I remember myself how I felt in that moment, and I know that I was taken back and I know that, I mean, and I'm not that old, but I'm old enough to know that that's – that wasn't – if that was unintentional I – I know that I would've felt differently about it. I know that – I would've known that it was unintentional.

MURRAY Right. Right. And I – I worded that really badly…

B.M. No. No.

MURRAY I ranted on there, but one being unintentional, ten being intentional. What was your feelings because that's what's important here, your feelings about whether there was intention to that; that move up to the leg and touching or no intention?

B.M. At that exact moment…I would say, like, between, I'd say eight and a half to nine… Because I, at first I was, like, I said earlier, like, I was taken back and I – I question myself and thinking, like, did that actually happen, did – it did whether it would – yeah whether I wanted to have happened or not, I guess, I can't say.

[51] I note that while B.M. accepted the suggestion put to her by Detective Murray that the defendant stopped, touched her and then moved on, this was not her evidence at trial. At no point did she indicate the defendant stopped. Nor did she indicate that he had brushed or touched her vagina. Her evidence was that the interaction occurred while he was in transit from point A to point B and that the touching stopped short of her vagina.

[52] Defence counsel also points to the following exchange that occurred towards the end of the cross-examination of B.M. and after reviewing the above-noted passage with her:

Q And to this day you cannot be sure that the touching that you say occurred was on purpose?

A Correct.

[53] Crown counsel points out, correctly in my view, the limitations on this evidence.

[54] Ultimately, it is for the court and not B.M. to decide whether the touching was deliberate. Support for this can be found in R v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at paragraph 81, where the court addressed the issue in an analogous context. In that case Justice L'Heureux-Dube commented on the relevance of the complainant's opinion with respect to whether the accused had an honest but mistaken belief in consent.

As to the issue of the accused's honest but mistaken belief in consent, the complainant's thoughts about the assault after the fact are completely irrelevant. The defence of mistaken belief in consent, as opposed to the defence of consent, normally only arises where the complainant and the accused tell essentially the same story about what occurred but differ in their interpretations as to whether the activity in question amounted to consent. In the present case, any mistaken perception or interpretation that might have existed was a matter located solely in the mind of the appellant; nothing in the subsequent comments of the complainant could add to, detract from, or have any relevance presence or absence of that belief at that time.

[55] At the same time, while B.M.'s opinion with respect to intentionality, standing alone, is irrelevant, the circumstances that give rise to such an opinion, if grounded in the evidence, may very well be relevant. To illustrate the point, if B.M. had expressed uncertainty about the defendant's intentionality because he tripped immediately before he touched her, this evidence would clearly be relevant to the court's ultimate determination, regardless of B.M.'s opinion.

[56] B.M. was not significantly cross-examined on the basis for her opinion. Ultimately, she says that what led her to downgrade the defendant's level of intentionality was that she could not say for certain what was in the defendant's mind. This is precisely the point made in the above-noted passage in Osolin.

[57] It may also be, as the Crown pointed out, that B.M. was simply trying to rationalize what had just occurred. Hence her statement to Detective Murray, that immediately after the incident she was asking herself, "like, oh, my gosh, like, did he mean to do that".

[58] In all of the circumstances, I agree with the Crown that it is reasonable to infer that the touching in this case was deliberate. I do not take the defence to be arguing otherwise. The question is whether this is the only reasonable inference to be drawn on the whole of the evidence.

[59] The defence submits that there is other evidence from which I could also reasonably conclude that the touching was accidental. While, as indicated above, the line between speculation and reasonable inference if often difficult to discern, having reviewed the evidence in its entirety, I agree.

[60] I find that the following evidence supports a reasonable conclusion that the touching was accidental:

(i) There is considerable evidence from both the civilian and police witnesses that the defendant was intoxicated at the material time. B.M. agreed that the defendant was intoxicated. She based this on "the way he was walking" and the fact that he cut through her group of friends when he could just have easily walked around them. She agreed that there was unsteadiness to his gait. Ms. N.C. described him as a "very intoxicated". Ms W., another friend of B.M. who was present at the time of the touching, also said that defendant was intoxicated. She also based this on the way he was walking.

In support of its submission that the defendant was exercising poor judgement on the night in question, the Crown underscored evidence of the defendant's intoxication at the material time and urged me to conclude that he was not "a sober individual in control of all his faculties";

(ii) Ms. W. testified as to her observations of the defendant when he was speaking to the other uniformed officers immediately after the touching. She described him as moving his hands and arms around while he was talking. She said they were moving in a way that she would not expect from a sober person. She said they appear to be moving significantly, possibly faster than normal and there didn't seem to be any particular reason behind the movement. The court was left with the distinct impression that the defendant's hands were moving in an uncoordinated fashion. I accept that this was the case;

(iii) The evidence of the security guard, Jason Bates, was that the defendant had to be escorted from the beer tent due to his level of intoxication. He described the defendant as wobbling and off balance as he was being escorted outside. He described how he walked the defendant to the nearest side door rather than through the crowd to the front entrance of the beer tent. His evidence was that the defendant was "not falling down, but, you know, could he go through a crowd and – and do so successfully without stumbling into people? No, he couldn't. But that's why we took a direct – direct route to the – to the closest doors."

[61] I find that an accidental or inadvertent touching of B.M. by the defendant's hand is one reasonable conclusion that arises from this evidence when viewed in the context of the evidence as a whole. While it is not the only inference, or even the most reasonable one, it is nevertheless a reasonable inference.

[62] Given the nature of the touching, which B.M. described as a quick brush, as opposed to a grab or a pinch, it is a conclusion that leaves me with a reasonable doubt as to the defendant's guilt.

[63] For that reason, I find the defendant not guilty.

Justice G. Orsini