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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 17, 2020

Court File No.: Central West - Brampton 18 - 6908

Between:

Her Majesty the Queen

— AND —

Subin George-Oomen

Before: Justice D.A. Harris

Heard on: December 11, 12 and 13, 2019

Reasons for Judgment released on: January 17, 2020

Counsel:

• Annie Simitsis — counsel for the Crown
• Jordan Gold — counsel for the accused Subin George-Oomen

Judgment

D.A. HARRIS J.:

INTRODUCTION

[1] Subin George-Oomen has been charged with sexually assaulting RF at the City of Mississauga on May 17, 2018.

[2] Crown counsel elected to proceed summarily. Mr. George-Oomen pled not guilty and the trial began.

[3] Two witnesses were called by the Crown during the trial. These were RF and Maria Malchiondo.

[4] Mr. George-Oomen testified. Susan Cherion-Joseph was also called by the defence.

[5] Mr. George-Oomen denied sexually assaulting RF. Accordingly, the principles in R. v. W (D) are applicable.

[6] If I find that his evidence negates any essential element of the offence, I must find him not guilty.

[7] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[8] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[9] In determining this, I must keep in mind that Mr. George-Oomen, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

[10] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[11] The case against Mr. George-Oomen depends on my assessment of the evidence of the various witnesses.

[12] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

[13] Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

[14] The distinction between credibility and reliability is very pertinent in this case where I am satisfied of the sincerity of RF. I am satisfied that he believed what he said. My concern is with the reliability of some of his beliefs. I will deal with this at greater length later in these reasons.

[15] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".

[16] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

[17] Both counsel have pointed out inconsistencies in the evidence of the various witnesses especially Mr. George-Oomen and RF.

[18] In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.

[19] I will also address inconsistencies later in these reasons.

[20] Crown counsel has argued that RF had no motive to fabricate the allegations against Mr. George-Oomen.

[21] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of RF's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.

[22] I am satisfied that RF had no motive to fabricate his allegations against Mr. George-Oomen.

[23] He called St. Elizabeth Healthcare only to tell them not to send Mr. George-Oomen back to his house.

[24] He did not wish to speak to them further about this complaint. He saw them only because they insisted that he do so.

[25] He did not wish to speak to the police. St. Elizabeth Healthcare personnel contacted the police who then arranged to interview RF.

[26] He made it clear in his evidence before me that he was not interested in pursuing the charge against Mr. George-Oomen. His last words to me as he left the stand were to the effect of "Be kind to him."

[27] I repeat however that I cannot simply conclude that because there is no apparent reason for RF to lie, he must be telling the truth. Rather, I must assess his credibility in the light of all of the other evidence. I note that this too has very little if any bearing on the reliability of his evidence.

[28] I will next address the elements of the alleged offence of sexual assault.

ELEMENTS OF SEXUAL ASSAULT

[29] Sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated".

[30] Section 265 of the Criminal Code provides that a person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly. This section applies to all forms of assault, including sexual assault.

[31] The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one.

[32] The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant.

[33] The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[34] The actus reus of sexual assault is established by the proof of:

(1) a touching,

(2) the sexual nature of the touching, and

(3) the absence of consent.

[35] The absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred.

[36] The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

[37] The offence requires general intent only. The mens rea for the offence is the general intent to touch the complainant.

[38] The accused may challenge the Crown's evidence of mens rea by asserting an honest but mistaken belief in consent.

[39] This is recognized by the Criminal Code where section 265 (4) provides that:

Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.

[40] It is essential to note that the honest but mistaken belief must be of communicated consent. The Supreme Court of Canada made this clear in R. v. Ewanchuk, where Major J. wrote that:

In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.

[41] The complainant must have affirmatively communicated by words or conduct agreement to engage in sexual activity with the accused.

A SUMMARY OF THE RELEVANT EVIDENCE

[42] Many, if not most of the facts are not in dispute. As I go through the evidence, I will point out where there is disagreement as to what happened. I will address those disagreements later during my analysis of the case. On the other hand, where the facts are not disputed, I have simply set them out without attribution to particular witnesses.

[43] Mr. George-Oomen was employed as a therapy assistant at St. Elizabeth Healthcare for almost four years. He had been employed by another physiotherapy service as a therapy assistant for three years prior to that.

[44] A therapy assistant performs tasks delegated to him by a physiotherapist.

[45] The physiotherapist prepares a care plan and determines what exercises should be performed by a client. The therapy assistant supervises the client performing those exercises. He is there to ensure that the client understands the exercises and is able to properly perform the exercises. The therapy assistant does not assess, examine or otherwise touch clients in private areas.

[46] Mr. George-Oomen completed a five-year physiotherapy program in 2002 at a university in India. He was licenced as a physiotherapist in that country.

[47] He is not qualified to be a physiotherapist in Ontario. He tried to qualify here but failed.

[48] Mr. George-Oomen testified that, as in Ontario, physiotherapists in India cannot do some things that only medical doctors can do. In both jurisdictions the hierarchy, in descending order, is doctor, physiotherapist and then therapy assistant.

[49] In December 2017, a client of Mr. George-Oomen complained about him. On December 29, 2017, Mr. George-Oomen was suspended, with pay, while St. Elizabeth Healthcare looked into this complaint. Mr. George-Oomen was reinstated on January 9, 2018 but he was given specific instructions before being allowed back to work.

[50] Maria Malchiondo is the senior director of human resources at St. Elizabeth Healthcare. She testified that she was present on this occasion and that in addition to giving him a warning letter she spoke to Mr. George-Oomen. They discussed how he was to be mindful of his conduct in the presence of clients in their home since he would be alone with them. He was to perform only delegated activities. He must never touch the private areas of a client's body and he must be mindful of even grazing such areas. He was to report any concerns, issues, uncomfortable circumstances or unusual circumstances to his supervisor immediately.

[51] Mr. George-Oomen testified that she was not present at that meeting. Rather he met with another person. He was given the letter. However, no one gave him any verbal warning then.

[52] No one told him that he was not to touch any clients on their private parts.

[53] However, he already understood that.

[54] He understood that he was to restrict his activities to carrying out his duties as a therapy assistant and no more.

[55] He understood what those duties were.

[56] He understood that looking at RF's penis would be outside the scope of his duties.

[57] He understood that he was to report anything that occurred during any interaction with a client "that is outside the scope of the care plan and/or appears inappropriate, uncomfortable or in any way concerning" to St. Elizabeth Healthcare immediately.

[58] He understood that failure to follow these instructions could lead to further discipline, up to and including termination for cause.

[59] With respect to this earlier complaint, I note that I do not know the particulars of the complaint. I do not know whether Mr. George-Oomen did these things or not. He denied any wrong-doing in his testimony. Even if he had done something wrong, that fact would be irrelevant and inadmissible. For the purposes of these proceedings, I am therefore accepting that he did nothing wrong on that occasion. I have referred to the complaint only to provide context for what happened between Mr. George-Oomen and RF. More particularly, the complaint and the manner in which it was resolved provide context for what should have been in Mr. George-Oomen's mind at the time that he was dealing with RF.

[60] RF was a man in his mid to late 80's who was referred to St. Elizabeth Healthcare in May 2018 for physiotherapy for strengthening and for prevention of degradation of movement. A physiotherapist prepared a care plan for him.

[61] Mr. George-Oomen was assigned to work with RF. He was to observe RF performing the exercises that had been prescribed by the physiotherapist, and where necessary, he was to assist RF in performing those exercises.

[62] He first saw RF on May 11, 2018. This was a Friday. According to Mr. George-Oomen, this did not start well. Mr. George-Oomen went to the front door of the residence, not realizing that he was supposed to use the side door. RF berated him at considerable length for this when he let Mr. George-Oomen into the house. RF disagreed with this, saying that he had merely pointed out Mr. George-Oomen's mistake to him.

[63] Other than this, this first physiotherapy session was uneventful. At its conclusion, they scheduled the next session. According to Mr. George-Oomen, it was to be the following Thursday. According to RF, it was to be the following Friday. Both agreed that Mr. George-Oomen returned on the following Thursday. RF testified that he was perplexed by the fact that Mr. George-Oomen was there a day early.

[64] The second session was not uneventful.

[65] According to Mr. George-Oomen, at some point RF put his hand over his groin area and said he had pain there. Mr. George-Oomen asked RF if he had any difficulty passing water.

[66] Mr. George-Oomen then asked RF if he wanted Mr. George-Oomen to look at it.

[67] According to RF, he never said that anything hurt. He did not experience any pain in his groin. He had never had pain in his genitals at any time in his life.

[68] He also denied being asked if he had any difficulty passing water. Even after seeing his video-statement where he told the police officer that Mr. George-Oomen had asked him if he had trouble passing water, he did not remember this. He had no trouble passing his water at that time.

[69] RF said that Mr. George-Oomen never asked him if RF wanted him to look at his penis. Rather, he asked him, "Can I see your penis?"

[70] Susan Cherion-Joseph was the rehab supervisor at St. Elizabeth Healthcare. She interviewed RF at his home following his complaint about Mr. George-Oomen. She testified that RF told her, amongst other things that he had complained to Mr. George-Oomen of pain in his groin area and that Mr. George-Oomen had asked him if he had any trouble passing water.

[71] Both RF and Mr. George-Oomen agree that RF pulled down his pants and Mr. George-Oomen took hold of RF's penis.

[72] According to Mr. George-Oomen, after RF pulled his pants down, he looked at RF's penis. Then, using his thumb and his forefinger, he touched the head of the penis for one or two seconds. He was looking for any signs of infection or inflammation such as discolouration, swelling, temperature change or tenderness. He tried to open the urethra looking for pus or tenderness. He also touched the scrotum for one or two seconds also looking for any infection.

[73] He did not think that he was saying anything to RF at this time or that RF said anything to him.

[74] He did ask him if he felt any pain. RF did not express any pain to the touch.

[75] After, Mr. George-Oomen told him that if he had any more pain, RF should see his doctor.

[76] He asked RF about erections at some point because there was some movement of the penis that he did not consider normal for someone RF's age. He was concerned about high blood pressure. RF said "no".

[77] Mr. George-Oomen then went into the bathroom and washed his hands. They then did some more exercises.

[78] After the exercises were completed, Mr. George-Oomen booked the next appointment for the next day. He did not report the day's events to St. Elizabeth Healthcare because nothing unusual had occurred.

[79] According to RF, after he pulled his pants down, Mr. George-Oomen took hold of his penis and squeezed it. RF told him it hurt, and he let go. He did not touch his testicles. This all occurred within a few seconds.

[80] He did not remember Mr. George-Oomen asking, "Does this hurt?"

[81] He did not say, "If the pain persists, go see a doctor".

[82] Mr. George-Oomen did ask him if he had erections. He did not answer him. He did not know what to think. It had nothing to do with his pain. He was an old man who did not expect to have erections. If he wanted one, he would go to a doctor and get Viagra.

[83] He denied speaking to either Mr. George-Oomen or Ms. Cherion-Joseph about his penis saying in court, "I don't talk to nobody about my penis".

[84] He assumed Mr. George-Oomen was trying to do something about the extreme pain that RF had in his right foot and below the knee. That was what Mr. George-Oomen was there to do.

[85] Mr. George-Oomen then washed his hands and said they were finished. He did not do any more exercises that day. It was then agreed that Mr. George-Oomen would return the next day for another session. He left RF's house.

[86] The following morning, RF contacted St. Elizabeth Healthcare and told them that Mr. George-Oomen was not welcome in his house and that he should not be sent there that day.

[87] This led to Ms. Malchiondo and Ms. Cherion-Joseph interviewing RF. They also interviewed Mr. George-Oomen. They contacted police who also interviewed RF.

ANALYSIS

[88] Much of the evidence of Mr. George-Oomen confirmed rather than negated essential elements of the charge against him.

[89] For example, by his own admission, Mr. George-Oomen intentionally applied force directly to RF. He touched RF's penis.

[90] Furthermore, he did so without the communicated consent of RF.

[91] Based on Mr. George-Oomen's evidence. RF consented only to Mr. George-Oomen looking at his penis. He did not consent to any touching.

[92] In these circumstances many of the inconsistencies between one witness' testimony and that of another become much less important.

[93] Maria Malchiondo testified that she was present at the meeting reinstating Mr. George-Oomen and that in addition to giving him the letter she cautioned him verbally at some length. Mr. George-Oomen said that she was not at the meeting. No one cautioned him verbally. However, he acknowledged that he was aware of each and every instruction that Ms. Malchiondo claimed to have given him.

[94] That knowledge on his part is important in my reasoning. How he obtained that knowledge is not.

[95] On another topic, Mr. George-Oomen testified that on his first visit he went to the front door of the residence, not realizing that he was supposed to use the side door. RF berated him at considerable length for this when he let Mr. George-Oomen into the house. RF disagreed with this, saying that he had merely pointed out Mr. George-Oomen's mistake to him.

[96] I am inclined to accept Mr. George-Oomen's version of these events.

[97] I found RF to be a credible witness. He clearly believed everything that he told me. I had more difficulty with the reliability of his memory. Nineteen months had passed since these events occurred, and RF's memory appeared less than perfect when it came to such things as dates and other less important details.

[98] Further, after observing RF testify, I could easily picture him berating Mr. George-Oomen in the manner Mr. George-Oomen described.

[99] Having said that, I note that the precise details of this exchange are not crucial to my reasoning. What is important is that Mr. George-Oomen clearly knew that RF was not about to quietly hold back on criticism if he thought that the other person had done something wrong.

[100] Both men agreed that other than this, the first physiotherapy session was uneventful. At its conclusion, they scheduled the next session. According to Mr. George-Oomen, it was to be the following Thursday. According to RF, it was to be the following Friday. Both agreed that Mr. George-Oomen returned on the following Thursday. RF testified that he was perplexed by the fact that Mr. George-Oomen was there a day early.

[101] Again, for the reasons just given, I accept that the appointment was for the Thursday. I note here that the evidence of Ms. Cherion-Joseph was also consistent with this conclusion.

[102] I also make the following observation. Both RF and Mr. George-Oomen speak with a strong accent. RF has a Jamaican accent. Mr. George-Oomen has an Indian accent. I found it difficult to understand both of them at times. It was necessary to listen very carefully when they spoke. I expect that it is entirely possible that they may have simply misunderstood each other on occasion.

[103] The two men disagreed with respect to the details of what happened immediately before Mr. George-Oomen touched RF's penis.

[104] In that regard, I accept that RF made some complaint of pain that led Mr. George-Oomen to ask him; (1) if he had difficulty passing water and, (2) if he wanted Mr. George-Oomen to look at it. In reaching that conclusion I note again that I am less than certain about RF's memory of less central details. He made contradictory statements to Ms. Cherian-Joseph. Mr. George-Oomen was consistent in his evidence on this. Finally, I cannot imagine RF pulling his pants down simply because Mr. George-Oomen said "Can I see your penis?". He might well do so however if the suggestion was the result of his own complaint.

[105] Again, I note that while there are significant differences in the details of the two versions of events, there is no disagreement about the important fact that there was no communicated consent for Mr. George-Oomen to touch RF's penis.

[106] RF testified that he did not consent to Mr. George-Oomen touching his penis. He said he was surprised and upset when that happened.

[107] I accept that evidence.

[108] I have previously noted that I found RF to be a credible witness. On this point, I also found his evidence to be reliable. This was not some insignificant collateral detail of an event that had occurred many months earlier. The touching of his penis was a key component of what happened that day. Further he was emphatic in both his demeanour and his words in court that he would not have ever agreed to someone touching his penis under circumstances like this.

[109] For all of the above reasons, I am satisfied that Mr. George-Oomen touched RF's penis without RF's consent. That would constitute an assault. The next issue is whether it was a sexual assault.

[110] Mr. George-Oomen consistently affirmed that the touching did not occur in circumstances of a sexual nature, such that the sexual integrity of RF was violated. When asked why he touched RF's penis he testified that he was just trying to be helpful. He wanted to determine if RF required the attention of a doctor either immediately or within a short time.

[111] I reject that suggestion. I am satisfied that the touching of RF's penis occurred in circumstances of a sexual nature, such that the sexual integrity of RF was violated. My reasons for this are as follows.

[112] Mr. George-Oomen touched RF's exposed sexual organ, his penis. There is likely no part of a man's body that is more central to his sexual integrity.

[113] He asked RF if he got erections. Absent some medical purpose for it (and I will have more to say about this very shortly), this is a highly personal question to ask a man. It is also a question of a sexual nature. It too could impact a man's sexual integrity.

[114] Further, RF made it clear that his sexual integrity had been violated. He was clearly upset by what had happened.

[115] On the other hand, there were no threats.

[116] There is no evidence that Mr. George-Oomen was motivated by a desire for sexual gratification.

[117] I do not know why Mr. George-Oomen did it.

[118] As I stated above however, I reject the suggestion that Mr. George-Oomen touched RF's penis in an attempt to help RF. His explanation to that effect defies belief. In reaching that conclusion, I have considered the following.

[119] Mr. George-Oomen was a therapy assistant who was supposed to supervise RF's physiotherapy exercises. He was to ensure that RF understood those exercises, that he was capable of performing them and that he did in fact perform them. That was the full extent of Mr. George-Oomen's duties.

[120] Mr. George-Oomen understood that those were his duties. He further understood that he was to restrict his activities to carrying out his duties and no more.

[121] This was only his second session with RF. They had not had time to get to know each other or develop any sort of a professional relationship.

[122] Accordingly, when RF complained of pain in his groin area, Mr. George-Oomen had no knowledge of any prior problems for RF. He knew almost nothing about RF. Despite this he did not ask any questions that might have allowed him to make an informed decision as to how to respond to RF's complaint.

[123] He did not ask about the nature of the pain or its exact location. He did not ask if RF had experienced this before and if he had received any prior medical treatment as a result. He did not ask if the pain had started when RF performed a particular exercise. All of these questions and more strike me as being reasonable questions that Mr. George-Oomen might have asked. The answers he received could provide an informed basis for him to decide what he should do next. His options might then include everything from asking further questions to suggesting that RF see a doctor immediately.

[124] But he did not ask any of these questions.

[125] Instead his first question was whether RF had difficulty passing water.

[126] This might well be an appropriate question at some point once Mr. George-Oomen knew more about RF but it strikes me as a useless question in the absence of some of the background information I just referred to.

[127] Mr. George-Oomen's next question was, "Do you want me to look at it?"

[128] Despite thinking about this for many days, I am still unable to come up with a reasonable explanation for why Mr. George-Oomen would ask this. He was not a medical doctor. He had no prior knowledge of RF's medical history or anything else about him. He did not even know what RF was specifically complaining of. He had not asked any questions that might have filled in some of the gaps in his knowledge. So, what exactly was he going to be looking for?

[129] He testified that he might have seen if the penis was discoloured. However, he never explained why he thought that it might be discoloured. He did not say what he would do next if it was discoloured. Nor did he say what he might do next if it was not discoloured. He also did not explain why he could not see this simply by looking at the penis rather than immediately taking hold of it.

[130] Further, even if there was a valid reason to touch the penis, it strikes me that the reasonable thing to do at that point would be to ask RF if he could touch his penis and explain why he wanted to do so. Again, I remind myself that he barely knew RF. They had no ongoing professional relationship. He had no reason to think that this older man would agree to Mr. George-Oomen touching his penis.

[131] Again, he did not ask, what strikes me, as the one question that should have been asked before touching someone in this manner.

[132] He did ask whether RF got erections. He testified that an affirmative response might be indicative of high blood pressure. That also makes no sense to me. If you want to know if someone has high blood pressure, the logical first question is "do you have high blood pressure?" Mr. George-Oomen did not ask that.

[133] Instead he asked about erections which might (or might not) be indicative of high blood pressure.

[134] Counsel for Mr. George-Oomen provided me three cases involving doctors who were charged with sexual assault arising out of medical examinations. All of these cases are clearly distinguishable from the case before me for many reasons. Mr. George-Oomen is not a doctor. He was not conducting a medical examination. I have found that RF did not consent to any touching. There is no expert evidence before me even suggesting that what Mr. George-Oomen did was "a bona fide medical examination conducted for a legitimate medical purpose". None of these cases are of assistance to me.

[135] All of this led me to reject Mr. George-Oomen's explanation for why he touched RF's penis.

[136] Having concluded that Mr. George-Oomen touched RF's penis without his consent in circumstances of a sexual nature such that RF's sexual integrity was violated, the final issue is whether Mr. George-Oomen had an honest but mistaken belief in consent.

[137] In that regard, as stated earlier, this must be an honest but mistaken belief in communicated consent.

[138] By his own evidence, Mr. George-Oomen made it clear that he did not believe that RF had expressly agreed to him touching his penis. In pulling down his pants in response to the question that was asked, RF had agreed at most to Mr. George-Oomen looking at his penis.

[139] Further, as I stated above, this was not a bona fide medical examination conducted for a legitimate medical purpose and I am satisfied that Mr. George-Oomen knew that.

[140] The defence of honest but mistaken belief in consent is not applicable here.

[141] Crown counsel suggested that sections 265(3) and 273.1(2) of the Criminal Code would have operated to vitiate any consent given by RF.

[142] Section 265(3)(c) and (d) provides that no consent is obtained where the complainant submits by reason of fraud, or the exercise of authority.

[143] Section 273.1(2)(c) provides that no consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority. The Ontario Court of Appeal has interpreted this section to require "proof by the Crown of an inducement to sexual activity by the abuse of a position of trust, power or authority. The mere existence of a relationship of trust, power or authority is insufficient to vitiate consent to sexual activity."

[144] More recently the Supreme Court of Canada stated:

Section 273.1(2)(c) has as its aim "[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity" (R. v. Hogg (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17). Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion contemplated by s. 265(3)(d) of the Criminal Code, which speaks to consent obtained where the complainant submits or does not resist by reason of the "exercise of authority". Rather, as Justice Doherty observed in R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1: "An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity" (para. 12).

[145] I have not relied upon either of these sections in my determination of this case.

[146] They are not applicable primarily because I found that RF did not consent to being touched by Mr. George-Oomen. There is therefore no consent to be vitiated.

[147] Further, had I found otherwise, I would not have been satisfied that there was fraud, or the exercise of authority or the abuse of a position of trust, power or authority.

CONCLUSION

[148] After considering all of the above, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. George-Oomen sexually assaulted RF. I find him guilty of that offence.

Released: January 17, 2020

Signed: Justice D.A. Harris