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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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
Court: Ontario Court of Justice
Date: 2019-12-10
Court File No.: Brampton 17-9488
Parties
Between:
Her Majesty the Queen
— AND —
An Do
Before: Justice A. R. Mackay
Heard on: May 6-10, 13, 14, September 9, 10, 2019
Reasons for Judgment released on: December 10, 2019
Counsel
Emily Beaton — counsel for the Crown
Harold Doan — for the defendant An Do
Decision
MACKAY J.:
Facts and Charges
[1] Mr. An Do is charged with sexually assaulting his co-worker, Ms. N.D. during the period from July 2016 until June 2017.
[2] It is alleged that the sexual assaults occurred at the workplace.
[3] The main issue I must decide is the credibility and reliability of the parties.
Undisputed Facts
[4] The following facts are not in dispute. Both parties worked for A[...], a company that painted parts for other companies. The defendant worked at the company as a painter for about a year prior to the complainant. The defendant knew the complainant's husband, they worked together at the sister company. The defendant agreed that he would try to get the complainant a job at his company.
[5] In April 2016, with the defendant's assistance, the complainant got a job at A[...]. To show her gratitude, Ms. N.D. took the defendant and his family out for dinner.
[6] The complainant was promised that she would receive a raise after six months but she never in fact received one. She had asked the defendant to ask D.B., their boss, for a raise and later asked Mr. Do to tell D.B. that he should lay her off if he did not want to give her the raise.
[7] The complainant did masking for the company and the defendant primarily did the painting. Masking involves taping the objects prior to painting.
[8] The defendant and the complainant sometimes worked seated side by side. Mr. Do had the knowledge of how to properly mask the items to be painted as he could read the blueprints for the parts and he trained Ms. N.D. how to do the job.
[9] Only Mr. Do, Ms. N.D. and Mr. L.L. worked on the factory floor. D.B. worked in his office at the front of the factory. The factory is about 7,500 square feet. It is open concept with a number of furniture, equipment bins and carts situated along the floor.
Mr. Do's Version
[10] Mr. Do was born in Vietnam but has lived in Canada since 1993. He is married and has five children. He does not have a criminal record. He worked for A[...] for close to five years.
[11] He denied ever touching the complainant in a sexual manner but he did recall that he touched her breast on one occasion by accident when they were working close together. He apologized and later told his wife about it.
[12] A sketch of the plant was put in evidence through D.B.
[13] Mr. Do was shown a number of pictures of the inside of the factory and some pictures of him in overalls and gloves. This was what he wore when he went into the painting room. Mr. Do would also wear at times safety glasses and magnifying glasses. He identified where he would work and where the complainant would work.
[14] The complainant had earlier pointed out all of the possible obstructions on the factory floor. Mr. Do explained each one and said they would not obstruct a person's view if they were looking on the floor from the office. D.B.'s evidence was also that his view was not obstructed by anything on the factory floor. The pictures that were introduced however, do show a lot of equipment on the floor of varying heights, with electrical boxes in the middle. D.B. appeared to be well over six feet tall.
[15] Ms. N.D. said she was standing when the defendant first groped her breast and crotch area. The defendant stated that she could not do her job while standing as it required a lot of attention to the nooks and crannies. The complainant advised that she would stand at times when she did her work. Given the long hours and tedious job, it seems plausible that she would, at times, stand to do her work. D.B. advised that she could work at any side of her desk.
[16] Mr. Do said they did not work on airplane parts as was stated by the complainant, however, D.B. testified that they did make parts for aerospace.
[17] When the defendant was showing the complainant how to mask a particular item, she would stand behind him or beside him. On one occasion he accidentally touched her breast with his elbow while she was leaning over to see what he was doing. He advised that he was scared when this happened and told his wife. I found this to be a bit odd that he would be so scared about this innocuous incident and felt the need to tell his wife about it.
[18] At the Christmas party in 2016 the complainant had hugged him and kissed him on the cheek. She also held his hand and asked why her bonus was so small.
[19] The party consisted of a lunch gathering with some items from Tim Hortons. Only the five staff members attended which included D.B. and another manager.
[20] Ms. N.D. asked the defendant to send money home to her family and not to tell her husband. Mr. Do later gave her $500 to send to Vietnam.
[21] Whenever the complainant needed help with something at work, she would hold his hand and pat his back. Many of the parts were difficult to mask and she needed his help. He had seen Ms. N.D. pat D.B.'s back and pat his stomach and chest before. She would also give Mr. L.L. a massage. She had tried to massage the defendant's back, but he shrugged it off and told her not to do that. The complainant would do this once or twice a month when she did not want to mask the parts.
[22] He wore his protective clothing every day. It was Ms. N.D.'s evidence that the defendant would wear the protective clothing only when he was painting larger parts because the room was kept very hot for the items to dry.
[23] Ms. N.D. would hold his hand when they spoke, and the defendant told her husband about it and his wife.
[24] After three months at the job, there was a day when there were many parts that were difficult to clean. Her hands were tired, and she screamed at the defendant and told him that this was not her job and to tell the boss to lay her off.
[25] It is interesting to note that D.B., who professed to hear everything on the factory floor, did not mention this incident. Similarly, Mr. L.L. did not mention hearing Ms. N.D. scream.
[26] Ms. N.D. complained to the boss that the defendant smoked in the factory and took pictures of him doing so with her husband's phone and showed them to the boss. D.B. confirmed that she complained about his smoking but did not mention that he had seen pictures.
[27] Exhibit 14 was a letter written by the complainant but introduced by the defence. It was written after she complained to the managers about being sexually assaulted and it refers to the defendant smoking.
[28] Mr. Do said the complainant had cried at work before because she missed her daughter who was in Vietnam and not because he sexually assaulted her. He would never dare touch her as he believed Ms. N.D. to be tough. She complained after three months that she wanted to be laid off and again several months later.
[29] Once he sent money home for her to Vietnam she changed. When she did not get the raise, she then paid attention to what he did and made up false stories.
[30] After she wrote the complaint to his boss about the sexual assault, they continued to work together.
[31] If Mr. Do told her that she did not do something correctly she would get angry and curse him. She told him not to intimidate her as this was Canada and ladies are first.
[32] In cross-examination Mr. Do agreed that D.B. could not see where he worked unless he was in the second office. He advised that D.B. sat most of the time in the second office. However, D.B. also sat in the first office. He agreed that Ms. N.D. and himself often worked alone together, but he added that D.B. would walk back and forth on the factory floor.
[33] Mr. Do advised that he told his wife he had accidentally touched the complainant's breast because he was concerned because Ms. N.D. had been holding his hand and asked his wife to look at her insurance policy. He was afraid that Ms. N.D. would tell his wife and he did not want there to be any misunderstanding.
[34] Mr. Do denied being interested in the complainant sexually. A portion of his video statement was shown to him where he stated that the complainant had said to him that her husband had "no power", and this is why she wanted to be with him. He said "I go maybe further with her but I cut it off. Stop. Completely". And later said "Because her husband find out, I get deep shit and my wife find out I get more deep shit".
[35] Mr. Do then tried to imply that the conversation was not about sexual interest and that the officer may have misunderstood him. He denied having any sexual interest in Ms. N.D. Instead he said the passage meant that the phrase "I go maybe further with her" meant only to help her life and make it better. It is clear however, from the context of the conversation that he was talking about a sexual interest or a least a romantic one. The Crown, Mr. Pyper, referred him to a few passages just before where he was talking about the fact that Ms. N.D. said her husband can only have sex with her once a month, that he has no power. He then agreed that they were talking about sex.
[36] However, when referring to the passage where he said he would get in "deep shit", he said he was referring to the fact that he was helping her a lot.
P.L. (Defendant's Wife)
[37] Ms. P.L. is the defendant's wife. For the most part she spoke about her family and was very emotional. She also repeated what she had heard from her husband, that Ms. N.D. had given him massages many times. Ms. P.L. said Ms. N.D. touched her husband every day. She also confirmed that Ms. N.D. had taken their family out for dinner to thank Mr. Do for getting her the job.
[38] Ms. P.L. stated the complainant had asked her to have her husband speak to their boss, D.B., to give her a temporary lay-off. She also said that the complainant called and said if she did not get a lay-off she would destroy their family and make everyone suffer.
[39] I did not find Ms. P.L. to be a credible witness. For the most part she repeated what her husband had told her. She said Ms. N.D. touched her husband every day when this was not the evidence of Mr. Do. Given Mr. Do did not have the power to give Ms. N.D. a raise, it would make no sense for Ms. N.D. to make the alleged threat to the Do family if she did not get a temporary lay-off.
D.B. (Manager)
[40] D.B. was the manager at A[...]. Mr. Do recommended that the complainant be hired. At first, she was hired part-time. D.B. was impressed that she worked additional hours without pay to learn how to mask and clean the parts, so he decided to hire her full-time.
[41] However, after six months, he began to notice that her worked slowed down and that she had to rely on Mr. Do's help to keep up with the work.
[42] D.B. described the factory floor as being open concept and that one could see everything clearly on the floor from one end of the plant to the other. The paint baths that can be seen in the pictures are only about three feet tall. He also stated that from inside the offices at the front where he worked you could hear the employees and see them. D.B. was an eager witness and wanted to clearly illustrate that he would be able to see and hear everything that went on the factory floor. He described that Mr. L.L. did not have a desk but that he would work and walk down the rows with the baths; and that Mr. L.L. would at times be working close to the defendant and the complainant.
[43] In contrast Ms. N.D. advised that Mr. L.L. had a table and chair that he would sit at from time to time. It was located at the opposite end of where she and Mr. Do would work. I find it unlikely that Mr. L.L. would remain on his feet without sitting for an eight hour shift.
[44] D.B. advised that the defendant wore his overalls for protection, with a mask and latex gloves. He did not state that Mr. Do wore them all the time. Sometimes the complainant would wear the overalls to protect her clothing. It was Ms. N.D.'s evidence that she would rarely wear the overalls.
[45] Sometime in September or October of 2016 he heard some crying in the factory and he went right away to see what happened. When he walked back towards the painting room, he saw it was the complainant who was crying. When he asked her what happened, Mr. Do answered for her and said that she had a problem back home and missed her family. Ms. N.D. did not confirm or deny this was the reason that she was crying at this time. Later on, when Ms. N.D. first made the complaint about being sexually assaulted, she advised D.B. that she was crying in the past because she was sexually assaulted.
[46] If D.B. had customers he would close his office door, otherwise it was open.
[47] The company has a policy about sexual harassment and all employees were given this document and asked to read and sign it. Mr. L.L. testified initially that he did not receive this document, however, when counsel asked him a second time, he recalled the document but stated he did not really read it. Similarly, the complainant advised that she was given a lot of paperwork to sign and with her very limited English she did not read it but chose to sign it as she was happy to have the job.
[48] D.B. advised that if he found out someone at work sexually assaulted another employee, he would fire them in a heartbeat.
[49] He received a written complaint from Ms. N.D. alleging that she was sexually assaulted on June 19, 2017. On the same day, D.B. found her there in the lunchroom, next to his office almost two hours after closing. He was quite surprised to find her there given the employees' shift ended at 4:30 p.m. As the Crown had pointed out, this illustrates that D.B. was not aware of everything that went on in the factory.
[50] The next day D.B. started the investigation and interviewed all three employees. He installed the cameras within ten days after receiving Ms. N.D.'s complaint. It should be noted that the request for cameras came from the complainant.
[51] D.B. referred to the fact that if she did not like something, he had said she would repeat what she had said earlier. Given the evidence of both the complainant and D.B., the topic where the parties came to an impasse was where D.B. and the other manager asked the complainant several times what she would like them to do with Mr. Do. Her reply was the same each time, that they were the bosses and that she was just an employee and did not know what to do.
[52] D.B. and H.G., the other manager, gave her questions written in English and told her to take it home and answer them. She advised the following day that she did not understand and on June 28th, 2017, she requested an interpreter. They contacted an interpreter who translated the questions and the interpreter also translated her answers. On July 12, 2017 they received her translated answers. At this time, they had a third interview with Ms. N.D. She took some time off work. Shortly thereafter, there was a summer shutdown.
[53] On August 8th, 2017 D.B. received a four-page complaint about Mr. Do. It was filed as exhibit 14. In this letter Ms. N.D. is complaining about a disagreement her and Mr. Do had about her work in front of a customer; it also refers to being "sexually attacked" and that she went to the doctor while they were on holidays because of the stress of the situation. The letter was dated August 3, 2017.
[54] On August 10, 2017 the defendant was arrested. D.B. and his other manager concluded that Ms. N.D.'s claim of sexual harassment was not substantiated. Given the defendant's release order, D.B. had to make two separate shifts for the defendant and Ms. N.D. so they would not have contact with one another. D.B. did not mention this was because of the court order but this can be inferred given he only made this change after the defendant was arrested.
[55] Ten days after the investigation Ms. N.D. told D.B. that she was expecting a raise after six months. He explained to her that he had only taken the company over a year before and that when they started making money, she would get a raise.
[56] Ms. N.D. later said that she wanted to be laid off, but he told her he could not as there was work for her to do.
[57] D.B. advised that she never asked him to fire the defendant. They asked her what she would like them to do and she replied that you are the boss and you should know what to do.
[58] D.B. stated Ms. N.D. was a touchy-feely person and that on one occasion she wanted keys to enter the factory early and at this time she rubbed his stomach and it felt strange.
[59] Ms. N.D. denied rubbing his stomach but did state she asked for the keys because during the wintertime she had to arrive early, given this is when her husband drove her and it was extremely cold waiting outside. However, D.B. would not give her the keys.
D.B. described a second time she rubbed his stomach at a Christmas lunch in 2016. She thanked him for being her boss. D.B. recently had heart surgery. He also observed that she hugged both Mr. L.L. and Mr. Do at this Christmas lunch. It was held in their kitchen at the factory and they got Tim Hortons cards as their bonus. They also received some baked goods and coffee.
[60] D.B. advised that Ms. N.D. had complained about the defendant smoking in the factory and swearing.
[61] D.B. first recalled being asked if Ms. N.D. could be laid off in December or November 2016. She stopped working at the end of September 2017. She brought in a doctor's note saying she would be on leave from September 23, 2017 to October 22, 2017 but she never came back.
[62] On one occasion he checked the security cameras and saw that the complainant and the defendant had an argument. He did so after Ms. N.D. advised of an incident in her letter dated August 3, 2017.
[63] D.B. stated that there was no microphone on the camera. He later corrected himself and said that he could hear them argue and did not need to watch the video.
[64] In cross-examination D.B. stated the following. He agreed that he was pleased with his three employees and did not have to micromanage their work. However, he said he would often go on the floor to check parts for customers. He agreed that he had a lot of different responsibilities of his own and that he was not at the plant one hundred percent of the time.
[65] D.B. agreed that Ms. N.D. spoke little English and that if she needed to tell him something, she would use her phone to translate what she wanted to say.
[66] Although he was aware that she did not speak much English it was his impression that when she did not want to answer his questions in the investigation, she would say she didn't understand.
[67] Ms. N.D. had no problems coming to complain about the defendant when it came to his smoking or swearing.
H.G. (Other Manager)
[68] Mr. H.G. was only at the plant two days a week. He began to go to the plant often after the complaint, especially when D.B. was not there.
[69] He conducted the investigation with D.B. and did not find any evidence to support Ms. N.D.'s claim of sexual assault.
Mr. L.L. (Co-worker)
[70] Mr. L.L. knew Ms. N.D. from a mutual friend and met Mr. Do when he began to work for the company. He never saw any fights or struggles between the complainant or the defendant. This is interesting given there was one occasion when she was crying loud enough for D.B. to come back to the factory floor and that there was another dispute captured on the cameras. In addition, Mr. Do spoke about the fact that the complainant would scream at him in frustration about the work.
[71] Mr. L.L. could see both the complainant and the defendant from where he worked, and he did not see anything inappropriate. In cross-examination he agreed that he would take a lunch break, washroom break and smoke breaks throughout the day. However, everyone had the same lunch break.
[72] He still works at A[...]. He did not initially recall receiving a document which described what to do if someone sexually harassed an employee.
Ms. N.D. (Complainant)
[73] Ms. N.D. came to Canada in 2014. At the present time, under the advice of her doctor, she is not working. She has worked two jobs since coming to Canada. The first was at a candy making factory and the second was at A[...]. She earned more money at A[...] and was happy to get the job. She started working there in April 2016. Her husband continued to work at the sister company. Mr. L.L. was hired after her. Mr. L.L. worked at the front end of the factory and her and Mr. Do worked at the other end.
[74] In July 2016 she was standing working at her desk and Mr. Do exited the painting room and approached her, embraced her and then with his hand, touched her breast and with the other hand touched her crotch. She pushed him away and screamed. She spoke to him in Vietnamese and asked him why he did it. She told him if he wanted to have sex he should go home and have it with his wife or get a hooker. She told him she is not a hooker and does not accept this behavior. At this point D.B. stepped in and saw that she was crying. He asked what happened, but she could not say anything, she only cried. She felt ashamed and was shaking. Mr. Do lied and told D.B. that she was upset because she missed her country.
[75] When the sexual assault took place, the defendant approached her on her left side.
[76] During the day D.B. would work outside looking for potential customers. If it was busy, he would work in the factory. She was shown a sketch of the factory and marked off where her desk was and where Mr. Do and Mr. L.L. worked.
[77] She advised there was not a clear view from one end of the factory to the opposite end where she worked. Ms. N.D. gave a detailed account of what is in the room and how these items can obstruct one's view.
[78] Over the year, the defendant had touched her in the same way more than 30 times. Each time she pushed him away.
[79] His hands were pushed off her breast immediately after he touched her.
[80] Ms. N.D. did not tell anyone what happened because she was ashamed and humiliated. After six months she finally told her husband who advised her to call the police. However, she chose not to call police at this time as she hoped Mr. Do would change.
[81] The second time he touched her happened about a week or 10 days after the first time. On the second occasion, the defendant had come close to her and said a few things about their work. He could see that she was focused on her task and was not paying attention. He then used his hands to touch her breast and her crotch.
[82] Ms. N.D. clearly recalled the last time which was on June 14, 2017 around 3 p.m. The second time through to the last was the same. Each time she struggled and pushed him away. She would tell him that she did not accept what he did and asked him why he was shamelessly flirting with her. He would reply "I got you the job to work here, how come you don't let me fondle you or touch you like that?" She would reply that they are both married and that he had no right to do that "you are my supervisor". Ms. N.D. told him that he has lived in Canada for more than 20 years and he should know that you are not allowed to touch other females' bodies, unless a woman has given consent. She warned Mr. Do that if he continued to sexually assault her that she would call the police and tell his wife. He would reply that he did not care and that he did not care if she pushed him away.
[83] Ms. N.D. did not believe that anyone in the area saw what he did.
[84] Ms. N.D. was asked if she had a specific memory about the third occasion and she replied that the second time to the last was the same each time and she went on to explain what occurred exactly as she had described earlier. Ms. N.D. was clear the first time was different. She had described the first time as Mr. Do first embracing her with both arms.
[85] On the second day of her evidence Ms. N.D. brought a very detailed diagram of the plant that she had sketched herself. She made the sketch as the floor plan she was shown the day before appeared to have several things missing. She was only able to look at the plan, exhibit 1, very briefly on the first day she testified. Ms. N.D. had drawn all the larger items that were on the floor and explained how a number of them could obstruct a person's view.
[86] Ms. N.D. marked where Mr. Do had sexually assaulted her the first time. The first time the defendant touched her Mr. L.L. and H.G. were not in the factory.
[87] Many times, at the end of her work day, she was crying but she did not tell her husband why. Finally, she got to the point where she could not stand it anymore and told her husband, six months later. He told her that if Mr. Do continued to sexually assault her, she would have to call the police so that they could solve the problem. However, she did not go to the police at this time. She explained she did not go because she was weak and endured the suffering. Ms. N.D. was afraid to tell the police because she believed that both her and her husband could lose their jobs. She had only been in Canada for less than three years. Ms. N.D. felt like a child who was starting from the beginning as she got used to life in Canada. In addition, she felt ashamed. She needed the money and the job. She did not know how long it would take her to find another job. Ms. N.D. earned only $11.25 per hour at her first job but earned $15.00 at A[...]. Her English was poor and when she spoke no one understood her. Finally, she felt bad that she would be getting Mr. Do in trouble when he got her the job.
[88] The complainant told the defendant that he was like a brother to her, he got her the job, trained her and helped her at work. For these reasons, Ms. N.D. wanted to give the defendant another chance to become a good man. She gave him so many chances and talked to him many times about what he was doing. Ms. N.D. did not want to do anything bad to him or his family but he did not change. He continued to approach her and touch her breast and crotch for almost a year.
[89] The last time he touched her, she pushed him away and Mr. Do scolded her. He said I would rather help a dog than help your family. She could not stand it any longer and on June 19, 2017, the same day, she stayed in the lunchroom at the factory and wrote a letter to give to D.B.. She gave it to him at 6 p.m. and then went home. The next day she was invited into D.B.'s office in the meeting room and was interviewed by the two managers, D.B. and H.G.. On June 21, 2017 she was interviewed again for about an hour, after which they told her to go back to her workstation. They invited her husband to come from the other factory and interviewed him. They were both told to go back to work and continue working.
[90] On June 27, 2017 she was interviewed for a third time. The managers gave her 13 questions in English and asked her to take the questions home and return with the answers. She tried to use the dictionary to translate from English to Vietnamese but there were so many things she could not understand. So, after writing a few lines, she asked D.B. the next day if she could have an interpreter. Mr. Do never touched her again.
[91] On July 23, 2017 she gave a statement to police. She went because she was very disappointed with the two managers. She felt like everything was collapsing and she had no belief that her managers would solve the problem after five interviews with them. Her health at this time was failing. She wanted them to investigate to bring back justice to her in the company. Ms. N.D. was exhausted after the interview, but they still asked her to go back to work when she asked for permission to take the afternoon off. She went to the doctor on July 13 and told him what happened. When she went to see the doctor a second time, he called the police and explained to them that she was sexually assaulted. The doctor then advised her to go to the police station on Dixie Road. She attended there and spoke to a police officer. She wrote a letter in Vietnamese summarizing everything that had happened. Her doctor advised her to stay home to get treatment. She initially stayed home one week and then went back to work. She has been off work since September 23, 2017 until today.
[92] Ms. N.D. was surprised that D.B. still had her work with Mr. Do after she had given him her letter advising him that she was sexually assaulted. Nothing had changed with her working arrangements. She was still under the supervision of Mr. Do and they worked in the same location in the plant. The company did nothing to separate her from the defendant. After the cameras were installed at her request, the defendant and Ms. N.D. continued to work at the same location. The diagrams reveal that they worked very close to one another. After the court ordered that the defendant not have contact with her, the company put them on different shifts.
[93] After she gave the letter to D.B., the defendant stopped touching her, but he tried to make trouble for her and complained about the job she did. For one complaint made by the defendant she wrote a second letter to D.B. and he advised her that he would look at the camera and let her know what he would do. However, he did not do anything and did not reply to her letter.
Cross-Examination of Ms. N.D.
[94] In cross-examination Ms. N.D. testified to the following.
[95] She was asked several times what happened and each time she described the first instance in the same way.
[96] She was asked why she would feel embarrassed to tell D.B. what happened. Ms. N.D. replied because she was embarrassed to tell him that the defendant had touched her breast. She did not write it on a piece of paper because women in her country who are victims of sexual assault are stigmatized, it affects their honour and then affects their mental health. Disclosing the assault would also affect her family's honour. Most women in her country will not tell anyone the truth about being sexually assaulted.
[97] Ms. N.D. explained that even though there are no walls in the factory, one's view from the back to the front of the factory is obstructed by the many containers, tables and shelves.
[98] Pictures of the factory were shown to her and she advised that there were many things that could obstruct your view. The desk in the picture was obstructed by an electrical panel. Further she pointed out the factory was very long. She stated that you cannot tell what is obstructed unless you are standing physically inside the factory. She pointed out in the pictures where Mr. L.L. worked and stood. She pointed out carts in the plant that can obstruct a view. Ms. N.D. went through the photos and pointed out about 11 items that can obstruct one's view.
[99] D.B. was in the factory but he would also go out to get more customers. He would work in his office and sometimes come out on the floor.
[100] Ms. N.D. could not specify the time the defendant first touched her or the exact date in July. She believed the incident happened around noon.
[101] When asked how she could remember the month, she stated that it was the first time in her life that something terrible and horrible happened to her. She suffered a lot, was in pain, humiliated and embarrassed. Ms. N.D. agreed that sometimes she could keep up with the masking and other times she could not because the job is a difficult one. She explained that the work was detailed and tedious.
[102] Ms. N.D. was asked what happened the first time and she described the incident as she had done earlier. She could not say how the defendant was dressed. Mr. Do not only did painting, he would also sit with her and do the masking.
[103] She never expected the defendant would do this to her. She considered him like a brother for helping her. Also she showed her gratitude by taking his family out for dinner.
When the defendant first touched her she was wearing her magnifying glasses. The glasses did not impair her vision, she could see him clearly.
[104] Ms. N.D. was asked how she was standing when the assault took place, she again repeated what had happened as she had done before.
[105] When he touched her the second time to the last he never put on his protective mask. She did not pay attention to what he wore with respect to his clothing.
[106] Ms. N.D. denied reading a code of conduct with respect to sexual assault. She was given a lot of paperwork and she did not read it as it was in English prior to signing the documents.
[107] She denied missing her daughter to the point that it would cause her to cry. She spoke to her daughter daily on Skype.
[108] D.B. promised her a raise after six months but he did not follow through. She did ask Mr. Do to speak with D.B. for her about the raise. When she asked Mr. Do a third time to speak to D.B., the defendant scolded her. She told Mr. Do that if D.B. cannot keep his promise, he should lay her off. Mr. Do had told her that he put the same proposition to D.B. and this resulted in him getting a raise.
[109] Despite not getting a raise, Ms. N.D. was prepared to continue working for the company as she was making a lot more money than she did at her first job and she stopped asking for a raise.
[110] Ms. N.D. spoke to the defendant's wife about finding a driving instructor and about her life insurance as his wife was taking a course on becoming an insurance broker. She did not tell Mr. Do's wife that she would destroy her family if Mr. Do did not get her time off from work.
[111] The people from Human Rights called her and they assisted her with an application. She was unaware of the Human Rights Tribunal and of the Workers' Compensation Board prior to their call.
[112] Ms. N.D. was asked several times in cross-examination to explain what she was doing the first time she was sexually assaulted. On each occasion she provided the same version she had first given. She was adamant that she was standing when the defendant approached her.
[113] When Ms. N.D. was sexually assaulted, she was not wearing the company overalls. She rarely wore them. On occasion if she was sanding or painting large items she would wear them. Her main task was masking.
[114] Mr. Do wore his protective overalls only when painting large items. He wore protective goggles when he painted. When not painting he would flip his glasses up to the top of his head.
[115] When Mr. Do was a supervisor he said to her many times that he would sexually attack her.
[116] Ms. N.D. denied massaging the defendant's back or Mr. L.L.'s or rubbing D.B.'s stomach. She denied always touching the men. However, she spoke about how the defendant would try to touch her leg with his when they ate lunch together.
[117] She denied making the allegations so she could get laid off. She had asked for the layoff because D.B. did not give her the raise as promised.
[118] The Human Rights claim is alleging over $100,000.00 in damages. Ms. N.D. did not pick the amount, it was the people from the organization who did it for her. She had no idea at the time she went to police that the Human Rights representatives would try to get her money. She still does not have a full grasp of what is involved or what they do. Her family doctor referred her to the Human Rights Tribunal.
[119] She had no intention of calling the police when she first wrote the letter to their boss D.B.. If she wanted to, she would have called the police rather than asking her employer to resolve the situation. She gave Mr. Do many opportunities to stop touching her.
[120] Ms. N.D. did advise the Human Rights that her employer continued to have her work with the defendant after she advised them what had happened to her.
[121] She denied that the defendant had gloves on when he first touched her, but she agreed he came out of the painting room. Mr. Do did not have the protective overalls on. She could clearly see when they faced each other that he did not have on his safety glasses. When he approached her he had nothing in his hands. Again, she described the sexual assault as she had done so several times during her cross-examination.
[122] Ms. N.D. denied taking pictures of the defendant smoking to get him in trouble. She denied hugging and kissing the men at work at the Christmas lunch.
[123] She agreed that she told D.B. and H.G. that it would be up to them what to do with Mr. Do. They had asked her several times what she wanted them to do and she replied that she was just a worker, not a lawyer, and advised they should know what to do. She explained that she is new to Canada and does not know what to do. She asked them to investigate and restore fairness to her.
[124] D.B. insisted that she tell them what she wanted them to do. After the fifth meeting with the managers, she was disappointed and did not trust them anymore.
Assessment of the Evidence
[125] The test to be applied in trials in which credibility is the real issue is well known, and was set out by Justice Cory in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law. Accordingly, in relation to the defendant:
i) First, if I believe his evidence, I must acquit him.
ii) Second, even if I do not believe his evidence but I am left in reasonable doubt by it or any of the other evidence, I must acquit him.
iii) Third, even if I am not left in doubt by his evidence, I still must consider it and all of the evidence and ask myself whether, on the basis of the evidence which I do accept, the Crown has proven guilt beyond a reasonable doubt.
[126] Guilt or innocence does not depend on a credibility contest. Rather I must consider all of the evidence and be satisfied that the Crown has proven the guilt of the accused beyond a reasonable doubt.
[127] In assessing the accused's evidence and the totality of the evidence including the complainant's evidence, Justice Duncan in R. v. Jaura, 2006 ONCJ 385 stated the following at para. 13 citing R. v. Hull (Ont CA Aug. 4, 2006 at para. 5):
…However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
Justice Duncan concluded:
…in a "she said/he said" case, … a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence. (para. 20). [Emphasis in original]
[128] Justice Doherty in speaking for the Court endorsed the same approach as Duncan J.'s for assessing the evidence of an accused in R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53:
….an out right rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused's evidence as is the rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[129] I have carefully reviewed all of the evidence. I have considered the defendant's evidence and the witnesses he has called. Further, I have assessed the evidence of the complainant's evidence through the lens of the defence theory, that essentially the complainant fabricated the allegations to first, get a layoff or because she did not get a layoff and then to get money through the Human Rights Tribunal. However, had Ms. N.D. wanted to go to the Human Rights Tribunal and to police she could have gone directly to the authorities and not attempted through several interviews to have the company deal with the sexual assaults she endured. After her second visit to her doctor, it was her doctor who contacted the police and told her to speak to the Human Rights Tribunal.
[130] The fact that Ms. N.D. did not disclose immediately is consistent with the dilemma she found herself in, which was that she felt indebted to Mr. Do for getting her the job and for teaching her how to do her job. Ms. N.D. did not go to the police earlier because she did not want to get him in trouble. In addition, in her culture women are stigmatized for coming forward as a result of being sexually assaulted.
[131] Asking to be laid off was a strategy she used to negotiate a raise. Mr. Do had told the complainant he successfully used the same strategy. Ms. N.D., even without the raise, was prepared to continue working at A[...]. She was earning more money than she had at a previous position.
[132] Ms. N.D. further was aware that Mr. Do only had the ability to ask for a raise on her behalf and suggest a layoff if the raise was not forthcoming. The decision to layoff Ms. N.D. was not the defendant's. He was only an employee.
[133] The fact that Ms. N.D. attempted to have the matter resolved without police involvement is confirmed by D.B.. She met with him a number of times to resolve what was happening to her at the workplace without success.
[134] The defence also argued that there would be no way for Mr. Do to be able to touch the complainant in the manner she described without this being seen by others at the factory. While D.B. spent a lot of time pointing out that the factory was open concept and that the view from one end to the other was unobstructed, he had other responsibilities which included meeting with clients in and out of the company. He would also take breaks. I have already reviewed certain events that occurred between the defendant and Ms. N.D. that D.B. was not aware of until after the fact.
[135] It appears that the factory floor was open concept, still there were several objects on the floor of different sizes that potentially could as Ms. Do testified, obstruct a person's view. D.B. admitted that he could not always have his eye on the factory floor and further he had no reason to as he did not need to micromanage his three employees.
[136] Ms. N.D. is not very tall and D.B. looked to be over six feet tall. They no doubt had a different bird's eye view of the factory floor. By looking at the photos of the factory I could not find that there were no obstructions.
[137] Even if the factory had absolutely no obstructions from one end to the other, there were still many opportunities for Mr. Do to touch Ms. N.D. in the manner she explained. Most days, there were only two other individuals in the factory, Mr. L.L. and D.B., and each would take breaks and look after other responsibilities. The sexual assaults consisted of a quick grab to Ms. N.D.'s breast and crotch area.
[138] Despite being cross-examined by an experienced lawyer for a number of days, there were no inconsistencies in Ms. N.D.'s evidence. Rather, she remained consistent throughout.
[139] The evidence of Mr. Do and the other defence witnesses have not raised a reasonable doubt in my mind about whether the sexual assaults occurred.
[140] The reasoning described by Justice Doherty in R. v. D. (J.J.R.) is the same reasoning that has led me to convict Mr. Do. I have rejected the accused's evidence not because of the way Mr. Do testified or the substance of his evidence, rather I have done so after carefully reviewing the complainant's evidence along with all the evidence I have heard, and I have concluded beyond a reasonable doubt that Mr. Do sexually assaulted Ms. N.D. in the manner she described while they worked together throughout the time period alleged.
[141] As a result, the defendant will be found guilty of sexual assault.
Released: December 10, 2019
Signed: Justice A. R. Mackay