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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Carter-Teixeira, 2019 ONCJ 741

DATE: 2019 03 07

COURT FILE No.: Brampton 3111 998 17 8034

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRANDON CARTER-TEIXEIRA

Before Justice G.P. Renwick

Heard on 23 November 2018, 04, 05, 06, 07, 14, and 26 February 2019

Reasons for Judgment released on 07 March 2019

C. Sibian................................................................................................ counsel for the Crown

M. Schwartzentruber.....…………counsel for the defendant Brandon Carter-Teixeira

RENWICK J.:

INTRODUCTION[^1]

[1] The trial of this matter proceeded in several stages. The Defendant brought a pre-trial application to determine whether the two charges of sexual assault should be tried separately. I dismissed the Defendant’s application for severance: see R. v. Carter-Teixeira, 2018 ONCJ 968. After three days of evidence, I also ruled on the prosecution’s similar fact evidence application: see R. v. Carter-Teixeira, 2019 ONCJ 102.[^2] During the trial I was also asked to decide if the Defendant’s statement to the police upon arrest was admissible at the Defendant’s request, pursuant to the principles in R. v. Edgar, 2010 ONCA 529, and R. v. Laird, 2015 ONCA 414. The parties agreed that I could determine this application and the result of the trial together.

[2] I propose to deal with the Edgar application first, in order to complete the evidentiary landscape upon which the trial will be determined.

THE EDGAR ISSUE

[3] Generally, the prior consistent statements of a witness, including an accused, are inadmissible at trial. This inoculates the evidential evaluation process from infection by the inclusion of information that usually serves no useful purpose. The knowledge that a witness said the same thing on an earlier occasion does little to assist the trier of fact charged with assessing the credibility and reliability of what a witness claims, because simply repeating something does little to bolster its veracity. As with most rules of evidence, however, there are exceptions to the general rule.

[4] In discussing the policy rationales for the general inadmissibility of exculpatory statements at the instance of the accused and earlier English authorities on the exceptions to the rule, the Ontario Court of Appeal held in Edgar:

The rule against oath-helping does no more than re-state the need for evidence to have probative value. If evidence fails to add anything new, repetition is less than helpful. However, where an accused makes a spontaneous statement in the face of an accusation or arrest for a crime, something is added. The reaction of the accused in such circumstances may yield persuasive evidence of innocence, which has quite a different quality than the accused's testimony given months or years later in the formal proceedings of the courtroom.[^3]

[5] Moreover, the reasons for excluding hearsay “evaporate” when the accused testifies and exposes herself to cross-examination.[^4]

[6] The court confirmed in Laird, that admitting statements made by an accused when first confronted with an allegation of wrong-doing can serve non-hearsay purposes at trial:[^5] the evidence is relevant to show the reaction of the accused when first taxed with the accusation and the consistency of the accused’s trial testimony with an earlier denial.[^6]

[7] Like any piece of evidence, I must assess the value of the evidence in the context of the issues at play in this trial. The Defendant’s police interview may assist the court to understand his state of mind and reaction when he was first confronted with the initial allegation and to enhance his overall credibility and reliability as a witness at trial.

[8] Neither party suggested that if the Defendant’s statement is admissible it could be used to impeach the Defendant or to undermine his credibility. Accordingly, if the statement is admitted into evidence, it will not be used by the court to prove the truth of its contents or to prove that the Defendant was not a truthful witness at trial.

[9] I must determine whether the Defendant’s statement to the police was made when he was first confronted with the allegation of sexual assault, whether the statement was “spontaneous,” and whether it has probative value to demonstrate the Defendant’s reaction to the initial allegation and to support his credibility at trial.

[10] The prosecutor opposed the admissibility of the Defendant’s statement to Officer Reid on the basis that it was not spontaneous, it was “self-serving,” it did not offer the court a chance to see the “real Brandon” in any material way, and it was lacking in overall probative value.

[11] With great respect to the contrary view, I find that the Defendant’s statement made shortly after his arrest is probative of several issues:

i. His state of mind upon learning of the first complainant’s allegation;[^7]

ii. His demeanor and reaction when first confronted with the allegation of sexual assault; and

iii. The content of his initial denial of wrong-doing and the consistency of the Defendant’s denial at trial.

[12] After having reviewed the Defendant’s police interview, I am satisfied on a balance of probabilities that it is capable of providing valuable evidence of the Defendant’s state of mind and his spontaneous and immediate reaction to being arrested for sexual assault. This statement is also capable of assisting the court when evaluating the Defendant’s testimonial denial of wrong-doing for the following reasons:

i. The Defendant appears to be relaxed and forthcoming when speaking to the investigating officer and his demeanor in court was more apprehensive, defensive, and guarded;

ii. The Defendant was talkative and forthcoming with information in his videotaped statement, while his evidence in court seemed more stilted;

iii. Watching the Defendant on the videotape, provides information about how he communicates and the gestures, words, and phrases he uses when discussing serious allegations as well as during the discussion of routine biographical or work-related queries, while his evidence in court is more one-dimensional in terms of his demeanor and certainly in terms of the content of the discussion; and

iv. The police interview provides a record of his facial movements, posture, and overall demeanor that can be observed, noted, and compared across an extended period of time and concerning different subject matter, including after the officer has left the room (he actually speaks to himself inaudibly at two different points); whereas, there is almost no spontaneity to the Defendant’s responses to questions at trial, the observations of his movements and mannerisms while testifying are fleeting, and without the video statement there is no baseline with which to gauge the Defendant’s apparent sincerity or deception.

[13] On the whole, I am satisfied that without the videotaped interview my evaluation of the Defendant’s sincerity as a witness would be significantly hindered because I do not know him, nor am I familiar with how he communicates information. As well, I have a better sense of “the real” Brandon Carter-Teixeira after watching him speak on video.

GENERAL LEGAL PRINCIPLES

[14] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any single element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed either or both offences, he will be acquitted of one or both of these charges.

[15] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^8] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have a reasonable doubt and an acquittal must follow.

[16] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[17] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[18] The role of confirmatory and contradictory evidence can also be important when assessing the evidence of witnesses. However, confirmatory evidence in particular need not directly implicate the Defendant or confirm the prosecution’s theory in every respect. Rather, the confirmatory evidence should be capable of supporting the relevant aspects of the witness' account.

[19] Similar fact evidence (“SFE”) may be used to support the credibility of a witness. In this case, I have decided that cross-count evidence may be used to support each complainant’s testimony. This finding does not pre-determine an outcome. In the end, I must determine if the SFE of another witness assists in the evaluation of a given witness’ testimony, and what, if any, value the SFE deserves. What is impermissible, is to conclude that the Defendant committed the other allegation on the basis of finding that he committed one of the allegations. A finding of guilt on one allegation does nothing to establish the guilt on another allegation. Such reasoning reverses the burden of proof, offends the rule against propensity reasoning and invokes bad character prejudice.

[20] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into 5 propositions:

i. I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[21] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific pieces of the evidence. Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate.

[22] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, listen to parts of the digital recordings of the proceedings, and to review the exhibits. I have thoroughly reviewed the evidence in this case and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I have come to no conclusions about any of the testimony I heard until all of the closing submissions were made and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

The Evidence of the First Complainant

[23] Overall, I found the first complainant to be a credible and reliable witness. There are several reasons for this assessment.

[24] The witness was attentive and careful to testify to what she knew and what she did not. Some examples prove the point.

[25] At one point in her evidence in chief the first complainant corrected the prosecutor’s question. This attention to precision continued during cross-examination. When it was suggested that people generally attend massages for two purposes (to relieve pain or to relax) the witness agreed. Then, later in the cross-examination, when discussing why the first complainant wanted a massage she reminded counsel that she had initially been speaking generally about why people received massages, and the massage in question was not for pain relief and relaxation, as counsel had suggested.

[26] As well, the first complainant was quick to admit the limits of her memory. In chief she testified that she could not remember if the Defendant massaged her left thigh while she was on her back. Among other admissions, during cross-examination the witness admitted being unable to recall if she had difficulty moving her neck on the date in question. Also, she could not recall window coverings when asked if the curtains in the massage room were open during her massage. The first complainant was also uncertain if music was playing during her massage.

[27] At one point during her cross-examination the first complainant spoke at some length about her extensive experience receiving massages in response to a question about whether the witness had gone onto the website of the College of Massage Therapists to become aware of the rules governing therapists. After the witness completed her answer, she was asked if she remembered the question. The evidence proved that she did.

[28] Counsel for the Defendant submitted that there were significant problems with the first complainant’s evidence. Among other complaints, counsel suggested:

-she was combative;

-her evidence was inconsistent on collateral details;

-it was unbelievable that she was unaware she could withdraw consent during a massage;

-she mentioned things that she had not told the police (for example, the Defendant touched her “inner” vaginal lips);

-there was a major discrepancy in the number of touching incidents in her statement to the police and her trial testimony;

-she had not sufficiently described which part of her vagina was touched by the Defendant in her statement to police;

-her evidence that she could not say anything to the Defendant about the alleged inappropriate touching was unbelievable in light of her behaviour during the massage; and

-the failure to mention how the Defendant removed her underwear without mentioning the lifting of her hips off of the massage table made this part of her testimony impossible.

[29] I have considered all of these arguments and the variations on these points that were made by counsel during the cross-examination of the witness and the closing submissions.

[30] I have also considered how the complainant testified. The first complainant testified loudly at points during her cross-examination. She appeared to be determined to be heard. I also sensed that this mechanism was her attempt to reverse some of the fear and powerlessness she described experiencing during the massage. I recognize that hostility generally while testifying can be an indicator of animus, bias, or unreliability. That said, the witness was balanced in admitting where her memory was weak, or where she was mistaken about what she had thought she had told the police. For the most part, where she was proven inaccurate, her testimony related to collateral details. It did not seem that the first complainant was necessarily adversarial, rather I believe that she was genuinely trying to recall the small details of an event that had happened 19 months prior.

[31] There was one part of her testimony that proved her memory while testifying was weaker than when she gave her statement to the police. During her evidence, initially the first complainant could not recall if the Defendant had massaged her left thigh. After seeing parts of her statement, she recalled that he had. Her explanation was that she recalled how she felt when he had touched her vagina and this was significant to her. It was less significant for the witness while testifying to remember whether or not the massage occurred on her left thigh. This was a reasonable and plausible explanation for this weakness in her testimony, and I accept it.

[32] The witness was also careful to acknowledge that some of the things she believed (for example, where the Defendant was looking when she turned over), were not necessarily based on what was objectively verifiable (she could not say for certain where his eyes were because she was avoiding making eye contact). At one point in cross-examination she also admitted where an earlier answer was hyperbole.

[33] None of the issues raised by counsel caused me to doubt the overall truth of the content of the first complainant’s evidence on the material points of her testimony. Was she inconsistent on collateral details, yes. Was she a perfect historian of what occurred, no. The real issue is whether the problems in her evidence cause me to doubt her credibility or reliability on the material points of her evidence. I was satisfied after a cross-examination which lasted four times as long as the evidence in chief that the first complainant was truthful and reliable, despite some of the frailties of her testimony. In the end, I believe her evidence.

The Evidence of the Second Complainant

[34] This witness also testified during two court days, but her entire testimony lasted less than the first complainant’s cross-examination.

[35] This witness was very compelling and very credible. She did not show any hint of testimonial fatigue, defensiveness, impatience, or hostility while testifying.

[36] Interestingly, this witness, who claims she does not know the first complainant or the substance of that woman’s complaint testified in a significantly similar way about many of the parts of the massage that she found troubling or inappropriate.

[37] In addition to the similar descriptions of how the alleged assaults made the complainants feel, the following similarities as between the two complainants’ versions of events are:

i. The Defendant undraped the entire back when he began the massage;

ii. The Defendant did not tuck the sheet when it was moved to expose an area;

iii. The Defendant suggested massaging the glutes for the first time during the massage;

iv. The Defendant removed the underwear to about mid-thigh to massage the glutes;

v. The Defendant never re-placed or moved up the complainant’s underwear once he lowered it to about mid-thigh;

vi. The Defendant used circular massaging motions on the whole of the buttocks, rather than massaging the side of the buttocks;

vii. While massaging the back of the complainant’s thighs, the Defendant massaged the inner thighs and his fingers touched the complainant’s vagina;

viii. The Defendant used the pads or tips of more than one finger to touch the vaginal lips of the complainants;

ix. The vaginal touching occurred as a brushing motion;

x. The vaginal touching occurred multiple times;

xi. The vaginal touching occurred while the Defendant massaged different areas; and

xii. Neither complainant ever told the Defendant not to touch her vagina, to stop touching her vagina, or stop the massage.

[38] There were also some differences in the accounts of the two complainants:

i. The first complainant described the vaginal touching in multiples of tens, whereas the second complainant described the touching as a few times;

ii. Only the second complainant described an incident where the Defendant rested his hand on her vagina for about 30 seconds;

iii. Only the first complainant described the Defendant squeezing the top, fleshy part of her vagina;

iv. Similar to the first complainant, the second complainant initially testified that the Defendant did not ask, but simply stated that he would be moving her underwear to expose her glutes, however, in cross-examination, the witness agreed that he may have asked before lowering her underwear;

v. Only the second complainant testified that the Defendant massaged part of her thighs while reaching under the sheet covering her;

vi. Only the second complainant testified that the first time the Defendant touched her vagina, she thought it may have been accidental;

vii. Only the first complainant testified that she felt the sheet was lifted at one point, probably to enable the Defendant to look at her body; and

viii. The first complainant described the Defendant touching her “inner” vaginal lips, whereas the second complainant described the Defendant touching the centre of her vaginal lips.

[39] In the end, I find that the similarities of the accounts of the two witnesses were striking and remarkable and unlikely to be the product of a coincidence of two fictional accounts.

[40] One of the most compelling parts of the second complainant’s testimony was her evidence that she was so disoriented after the massage, she could not find the exit after paying for the massage and actually opened a closet to leave.

[41] The second complainant testified about why she did not immediately report what she believed was a sexual assault and how she came to make a report to the College of Massage Therapists before learning that the Defendant had been charged for sexual assault. Bearing in mind that there is no single, proper way to respond to sexual assault and people may experience things differently, the explanation given by the second complainant for her initial decision not to report her experience was plausible and compelling.

[42] During cross-examination, the second complainant denied that her memory of the event was fresher when she told the officer what had happened. Her explanation was that she was more nervous when speaking with the male officer because she was describing a traumatic, personal event for the first time and she was much clearer about the details of the assault while testifying. Although I found this evidence less believable than other parts of her testimony, it did not cause me to have doubts about the rest of her evidence.

[43] Certain discrepancies about what details of what the second complainant told the officer versus her testimony were raised during cross-examination. Again, this witness was clear about the substance of the allegations. Like the first complainant, she testified that there were small things that did not seem important to mention to the police in light of the serious allegations she was reporting. This explanation made sense to me and I accept that the witness was being truthful about why she did not mention certain details to the police.

[44] Cross-examination also revealed that the second complainant did not remember that she had indicated on the massage consent form that among other parts, she indicated that she wanted her hips massaged.

[45] The second complainant was candid in chief and during cross-examination that she learned of the Defendant’s initial charge in relation to the first complainant before she reported her allegation to the police. Her evidence in this regard seemed genuine. She did not attempt to hide how it came to be that she made her allegation to the police. This supported the credibility of the witness.

[46] When it was suggested in cross-examination that the various pages the witness had read about the Defendant when she checked his governing body’s website made her feel that she had been sexually assaulted, the witness responded, “No. Being in that room with Brandon, I knew I was sexually assaulted.” She admitted that knowing that he had been charged with sexual assault gave her the courage to make her report. This evidence was not contradicted. It is simple, plausible, and compelling. I accept it.

[47] The second complainant admitted in cross-examination that memories can be influenced by new information, or they can change over time. She specifically acknowledged that when she reviewed her statement to the police in the weeks before the trial she could not remember if the Defendant had tattoos or facial hair because her memory had become influenced by photographs she had seen of the Defendant after the events in question. During this testimony the witness made reasonable concessions and this evidence enhanced the witness’ credibility. I note that the Defendant had facial hair and wore glasses while in court, whereas these aspects of his appearance were different at the time he gave his statement to the police.

[48] On the whole, the second complainant testified in a compelling, apparently neutral, and uncomplicated way. She was at all times believable. The substance of her evidence did not change, nor was she contradicted in any material way, until the Defendant testified. I find that the second complainant was credible and reliable with respect to the allegations she made.

The Evidence of the Defendant

[49] The Defendant is an articulate and intelligent person. However, he was not a compelling witness. His answers were largely simple denials without much detail. He testified in a straightforward, unadorned manner, but his pattern of speech was monotonous and without any apparent emotion, inflection, or sincerity. His evidence did not seem genuine.

[50] In terms of the content of the Defendant’s evidence, he explained how the consent form completed by a patient opens the door for the initial discussion about what needs to be massaged. His evidence also proved how common it is for his patients to suggest they wanted a particular area massaged, but the discussion before the massage, or the massage itself would provide him with critical information he could use to determine if other areas also required treatment. This evidence was unchallenged. It was plausible and I accept it.

[51] The Defendant testified convincingly about his general practice in obtaining consent to massage areas that were not initially indicated in a patient’s consent form.

[52] The Defendant also testified in chief about the movement of a patient’s underwear to just below their hip or the hip bone to perform a glute massage. He denied that he would ever move a patient’s underwear completely off of their pelvic region to the mid-thigh area.

[53] When asked about who would re-position a patient’s underwear during a massage the Defendant testified that if he were asked, he could do that, but otherwise he would leave it for the patient to put their underwear back into place so that there would be “no complications or issues.” He also said that this is the patient’s responsibility and he gives the patient power by leaving this with them. This evidence seemed strange to me. I find it unusual and implausible that the Defendant has no difficulty moving a person’s underwear from its usual resting position to expose part of the buttocks or hip in order to massage the patient, but once that part of the massage is complete the Defendant will leave the person’s underwear for the patient to re-position it, unless he is specifically asked by the patient for assistance re-placing their underwear.

[54] He also testified in chief that while it is not required that a massage therapist receive additional consent to massage the glutes, it is a good practice, which he follows.

[55] The Defendant was also asked in chief about his interactions with the investigating officer. Most of this evidence is uncontroversial. However, one part was quite telling. The Defendant testified that he did not know why the police was calling him to come in, but he felt a “panic” when Officer Reid first called him and an “anxiety” and “panic” the second time the officer called. This evidence was somewhat unusual in the sense that this was before the Defendant knew why the police wanted to see him. He testified that he had never before been called to come in to speak to the police and there seemed to be a haste to get him to come in immediately because something bad had happened and he was needed for questioning. While it is understandable that someone may become concerned about being asked to come to the police station to answer questions, the Defendant’s evidence did not satisfactorily explain why he felt panic or anxiety. The lack of a plausible explanation for these feelings left me with the impression that the Defendant was not truthful in this part of his evidence.

[56] The Defendant explained that after he had been arrested he experienced “a form of shock; emotional and physical as well.” He was “disoriented” and “anxious.” He testified that he had no direction in his movement and he was “just sort of drifting.” If this evidence was true, it did not appear that way in the video. To the contrary, the Defendant appeared to be acting naturally, he appeared relaxed, he was talkative, he used his hands to move, and he stood up to demonstrate various things at different points in the video. The Defendant’s evidence about what he was experiencing during the video statement did not seem consistent with my observations of the recording of him during that time.

[57] The inconsistency of what the video depicts and the Defendant’s testimony about his state of mind at the time undermines any corroborative value of the prior statement to the police. I find that either the Defendant’s behaviour on video was contrived to create the appearance of someone without any apparent concern after having been arrested, or his evidence on this point was misleading.

[58] The Defendant was asked about the first complainant’s initial assessment before the massage began. According to the Defendant, the complainant appeared to be in a hurry to start the massage. Nonetheless, he testified that they covered the fact that her complaints of pain in her shins (from running) were related to how the legs move, how the glutes control the hips, and the fact that he had asked about these areas and specifically received her consent prior to the massage of these areas. He said that he obtained her “extra consent” to massage these areas at that time. He also testified that he obtained her consent to massage her thighs also at this time.

[59] When the Defendant was asked in chief if the complainant’s neck issue was related to her glutes or hips he testified, that he was not entirely sure.

[60] The Defendant described how he began the massage of the first complainant by starting with her neck and back. He undraped her and tucked the sheet under her hips. He testified that when massaging her lower back, a twitch response indicated that there was a pain that needed attention. He then mentioned the risks and benefits of doing treatment in her lower back, hips and glute region. He was asked by his counsel why he would mention this again if it was already covered in the initial assessment. The Defendant explained that it is always important to ensure that the patient “has the power to stop, alter, or make changes to the treatment.” In light of the Defendant’s earlier testimony about the consent form and the initial assessment, this additional explanation seemed unnecessary and implausible.

[61] I also noted that when the Defendant spoke of massaging the first complainant’s glute after moving her underwear on one side to her hip bone, he began to speak in a conditional tense – he used the words “would be,” rather than “did.”

[62] The Defendant corroborated that part of the first complainant’s evidence where she says she clenched her legs during the massage. He said he became aware of this when her underwear was down. When he was asked if he made inquiries about why she was clenching her legs, his answer was, “ah, not so much,” which I found was vague.

[63] The Defendant was asked about the draping of the patient while he worked on her right side glutes and hip. He answered, “The left side is covered and the right side is exposed. The rest of her back should be covered.” Again, this use of a conditional verb tense seemed out of place. Even counsel for the Defendant asked, “Should be – was it?”

[64] The Defendant testified that he ended the massage by doing “muscle squeezing.” This was an interesting use of language given that he specifically disagreed that he “squeezed” the complainant’s muscles at the end of the massage when that was suggested by the officer during his video interview. Again, this testimony was not corroborated by the video statement (in fact, it was contradicted) and his credibility was not enhanced as a result.

[65] His evidence in chief ended with an explanation for his reactions during his video statement (he had laughed at different points and stated he found the allegations were “funny” and “hilarious”). His explanation (he was in an emotional shock, he was upset and tired) was understandable, although given my observations of his demeanor in the video this evidence was less than credible.

[66] Although because of the structure of these reasons it may appear that I had difficulty with parts of the Defendant’s evidence in chief, I did not make these observations when the evidence was given. It is only after hearing all of the evidence and the submissions and completing my review of the evidence that the above-noted observations were made.

[67] In cross-examination the Defendant confirmed that at all times he stayed 2-3” away from the patient’s vagina. He demonstrated what he meant by that. His demonstration appeared to be about 5-6”. He then confirmed that he stayed 2-3” or 3-4” away from the patient’s vagina at all times. This variability on such a simple point did not create confidence that the Defendant was being truthful.

[68] When asked in cross-examination if it was ever possible for the Defendant to have touched a patient’s vagina during a massage, the Defendant said it was not possible. This evidence was categorical: he used the word, “impossible.” In contrast, he said the following to Officer Reid at about 1:15 am (p. 29 of 70):

TEIXEIRA: Pretty much if we’re working up it depends on the individual. There is no instances where some where I am intentionally touching or trying to touch or getting close. The only time it becomes awkward is when somebody, like herself a little bit and other people, are very thin. Because I have big hands. So if somebody’s very thin obviously if my leg is like this then my whole hand wraps around it. That includes up, up toward there. So it’s harder to treat when you’re having to do this, and not potentially make a mistake. I don’t touch anything. But for that matter how close we come, or how close do I come essentially where the, where the medial head of the hamstring attaches to (inaudible). So like underneath here.

And at 1:29 am (p. 43 of 70 in the transcript):

TEIXEIRA: There’s, there’s no reason to touch that area.

1:29

REID: At all.

TEIXEIRA: No. The only time it would ever happen is if I physically slipped for whatever reason.

REID: Mm-hmm.

TEIXEIRA: Lose traction (inaudible) oil or whatever, or a patient moves.

[69] When asked if what the first complainant said about the number of times she claimed her vagina had been touched and whether this sounded like it could be the result of an accident, the Defendant answered in a vague way: “as she may say.” And when this was followed with questions about whether the conduct sounded intentional, the Defendant answered, “Not to me, because I know what my actions were.” This demonstrated a reluctance on the Defendant’s part to agree with the prosecutor’s reasonable suggestion that a touching of someone’s vagina 30 times would not likely be accidental and would appear to be intentional.

[70] A great deal of the Defendant’s cross-examination examined his knowledge of what the police wanted him to come in to discuss, and the content of his video statement. I did not find much of the cross-examination helpful given that the contents of that statement were not admissible for their truth. However, when it was asked why he told the officer that he did not know whether this was a “one-off mistake,” the Defendant testified, “I didn’t know what it is,” and further on he testified that “typically it is not a mistake; so I wouldn’t know; in my mind, I don’t know; I haven’t done anything.” These answers were somewhat believable.

[71] The video statement of the Defendant assisted me to see a greater range of emotion and demeanor than the Defendant portrayed during his evidence in court. I am satisfied that the Defendant was relaxed, calm, and talkative when he was asked about his patient between 5-6 pm that day. When the Defendant was first confronted with the allegations of sexual touching he said, “okay,” or “fine,” several times (see pages: 47, 48, 57, 58, 59, 67, and 69). He laughed about the number of times he was alleged to have touched the first complainant’s vagina and he told the officer that he was relieved to hear the allegations, because he:

…didn’t know necessarily what you were going to tell me today. But out of like you mentioning it today it’s my patient like I, like I remember her and it’s good that it’s current. ‘Cause it’s today. And it’s yeah there’s no reason I’ve yeah. I remember today. Fairly well. So, as best as I can. So yeah (at pages 58-59).

[72] The Defendant’s statement corroborated the Defendant’s evidence in a general way, because he denies sexually assaulting the complainant that was known at the time he was initially arrested. Although there were some inconsistencies in terms of whether or not he could have touched the first complainant by accident, I am satisfied on the whole that the Defendant was consistent in his denials of any criminal wrong-doing.

[73] However, in light of the issues noted above, I had difficulty accepting the Defendant’s evidence in material respects. When I put the Defendant’s evidence in context (how stressful it must be to testify on one’s own behalf), and I consider all of his evidence, his demeanor, and the matters referred to above, I do not accept the Defendant’s evidence that he did not sexually assault the first complainant.

[74] The Defendant’s evidence in respect of the second complainant was even less satisfactory because he quite reasonably and candidly admitted that he did not remember giving that massage. In the end, he could only say that he never touched any patient’s vagina and that was taken to mean including the second complainant.

[75] After a consideration of all of the evidence, I am left with a reasonable doubt concerning the Defendant’s denials concerning the first complainant. I believed her and I did not believe him, but I have a remaining, reasonable doubt in light of the frailties of her evidence and the general corroboration of his evidence found in his video statement. Although the similar fact evidence corroborates much of this complainant’s evidence, it does not remove the remaining doubt I have about the truth of this allegation.

[76] There was no evidence of actual collusion between the two complainants in this case. I have considered whether there was evidence capable of establishing the potential for the second complainant’s evidence to have been tainted by information from her husband, who was present in court for some of the first complainant’s testimony.

[77] I have considered the order to exclude witnesses and the direction to the parties to advise witnesses of the order. As well, I have considered that each witness was sworn or affirmed before testifying. There was no evidence that the first complainant was aware of the content of the second complainant’s allegation. Likewise, there was no evidence that the second complainant was aware of the content of the first complainant’s allegation when she gave her police statement or when she testified. The second complainant’s evidence is clear that she knew of the timing of the first complaint, the fact of a complaint of sexual assault, and that the alleged assault occurred at the same massage clinic in Brampton.

[78] I have also considered the second complainant’s evidence that there was a limited opportunity for her husband to have shared with her information about the testimony he had seen. On all of the evidence, and in light of the second complainant’s evidence on this point, I am satisfied that there was no collusion or tainting of the second complainant’s evidence.

[79] I am not left with any reasonable doubt in respect of the second complainant’s allegation. This witness was extremely believable and I accept her evidence.

[80] The Defendant’s general evidence that he would not sexually assault a patient did not leave me in a state of reasonable doubt about this allegation. I am certain that the Defendant touched the second complainant’s vagina several times and he rested his hand on the top of her vagina for several seconds, during the course of a therapeutic massage. I reject the Defendant’s general denial of wrong-doing given his specific lack of memory and the overall poor quality of his testimony.

[81] Lastly, I am not left in any reasonable doubt about this allegation in light of the evidence which is accepted by me.

CONCLUSION

[82] This was a close case and a difficult decision to make. As well, I recognize that this result may be somewhat unsatisfactory to everyone involved, but the evidence which I accept and that which was rejected by me has left me in a state of reasonable doubt respecting the first complainant’s allegation despite my belief that her evidence was accurate and accounting for the cross-count similar fact evidence supporting her version of events. That doubt is resolved in the Defendant’s favour.

[83] Brandon Carter-Teixeira you are guilty of sexual assault as alleged in count 2 on the Information. I find you not guilty of count 1.

Released: 07 March 2019

Justice G. Paul Renwick

[^1]: Note that there is a ban on publication of information identifying the complainants. [^2]: In both of these decisions, the Defendant’s name was misspelled as Carter-Teixiera. The error is mine alone and I sincerely regret this. [^3]: Edgar, supra, at para. 67. [^4]: Edgar, supra, at para. 68. [^5]: During submissions, counsel for the Defendant was clear that the Defendant’s statement to the police was not admissible for the truth of its contents in this case. [^6]: Laird, supra, at para. 49. [^7]: Although her alleged sexual assault occurred after the other complainant’s chronologically, this complainant gave her statement to the police on the day of the alleged assault, which was several weeks before the “second complainant” came forward and reported her allegation. Her complaint is found in count one on the Information. The second complainant’s allegation is contained in count 2. [^8]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.