Ontario Court of Justice

Date: January 22, 2020

Central East Region

Between:

Her Majesty the Queen

— AND —

A.O.

Before: Justice F. Javed

Heard on: January 20, 21, 2020

Reasons for Judgment released on: January 22, 2020

Counsel:

• D. Portolese, counsel for the Crown
• I. Gavran, counsel for the defendant

Publication Restriction Notice

A non-publication order in this proceeding has been issued pursuant to s. 486.4(1) of the Criminal Code. By order of this court, any information that could identify the parties shall not be published in any document, broadcast or transmitted.

F. JAVED J.:

A. Introduction

[1] A.O. was tried before me for the offence of sexual assault contrary to s. 271 of the Criminal Code.

[2] The alleged victim in this matter is G.B., a former co-worker at a Swiss Chalet restaurant, where the two parties were formerly employed. G.B. claims that A.O. touched her breast over her shirt and then tried to touch her breast, again, under her shirt, both times, without her consent.

[3] The Crown proceeded by summary conviction.

[4] A.O. denies the sexual touching. He testified he did not touch G.B. at all, nor did he try to.

[5] The Crown called G.B. and another co-worker, S.P., who testified about her demeanor shortly after the event.

[6] A.O. testified with the assistance of two fully accredited Tagalog interpreters. He did not call any other evidence. Before I turn to the contested issues in this case, I will address some legal issues that arose during the trial.

Browne v. Dunn Issues

[7] This was effectively a two-witness case with the parties offering diametrically different versions of what happened at the back of the restaurant while A.O. was out for a smoke. During the cross-examination of G.B. by the defence, Ms. Portolese raised an objection that defence had violated the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, leave to appeal refused, [2016] S.C.C.A. No. 203. This rule is designed to ensure fairness to the trial process. The rule requires that a witness should be confronted on substantive issues before a witness offers contrary evidence. It is meant to avoid trial by ambush. The law is clear that not every minor detail need be put to a witness; rather, only substantive points should be. See, for example, R. v. Giroux, [2006] O.J. No. 1375 (C.A.); leave to appeal to the SCC refused, [2006] S.C.C.A. No. 211. If the rule is breached, a trial judge has discretion on what remedial steps, if any, to take. After hearing submissions, Ms. Gavran conceded there may have been an inadvertent breach on a couple of issues, but the defence chose not to rely on the evidence where she admitted there was a breach. Consequently, the court was not asked to recall any witnesses. The Crown did not ask that an adverse inference be drawn. Accordingly, the court was not asked to make a ruling on this issue.

Evidence of A.O.'s Utterances to the Police

[8] During the cross-examination of A.O., Ms. Portolese elicited, without objection, evidence of A.O.'s utterances to a police officer. This was after the defence had lead evidence in chief of A.O.'s initial reaction and comments with the police when he was accused of the allegation. I was advised that the intended purpose of this evidence was to adduce evidence of A.O.'s state of mind, which he testified by saying he thought it was a joke.

[9] Ms. Portolese seized on this potentially important incriminating evidence by cross-examining A.O. on it. The defence did not object to this portion of the cross-examination. It was never established if this was in fact incriminating. The relevant exchange was as follows:

Q. When officer told you I would like to speak to you about incident about a girl from work. Do you recall that question?

A. I was told that I had assaulted someone at work Tuesday night

Q. Before officer got into allegation, he said I would like to speak to you about an incident with a girl at work … What ….

A. He said is this A.. I said yes. Cause I said he must be joking

Q. Before officer mentioned anything about sexual assault, he said I would like to speak with you about an incident with a girl at work. Do you agree that's what he said?

A. I can't remember. He said he's police.

Q. I'm going to suggest I want to speak to you about an incident about girl at work and you asked is this about G.B.?

A. Yes, I asked that.

Q. So, you immediately knew, when he said generic incident, it was about G.B. right?

A. Because the police said Swiss Chalet at […] …[Rd.]

Q. Well, G.B. was not the only girl working, could have been anybody, you immediately knew had to be about G.B.?

A. I thought people trying to trap someone. Is this true.

Q. You immediately knew about G.B.

A. I didn't know

Q. But you just agreed with me when officer told you, you asked him is this about G.B.

A. Because I immediately thought about her that night [as she was the] only girl there. S.P. was in [the] dining room except her.

Q. Agree V. working

A. Yes there was

Q. V., G.B., and S.P., could have been more

A. There were many and some in kitchen as well. Driver, manager,

Q. So, amidst all women, focused on G.B.

A. She was the one joking around with me.

Q. I'm going to suggest that you knew police called about G.B., you knew you sexually assaulted G.B. that night

A. Actually, I thought it was a joke, she was trying to fool me.

[10] Prior to re-examination, I raised the issue of voluntariness of these utterances which must be proven by the Crown beyond a reasonable doubt. I learned that it had not been conceded for any purpose. That is, the parties did not reach an agreement that the utterances were voluntary either for substantive use or for cross-examination. The court invited submissions on the admissibility of A.O.'s above utterances and the use, if any, of the utterances. Counsel were given overnight to consider their positions.

[11] Ms. Gavran submitted that upon reflection, the defence erred by leading A.O.'s utterances, which was inadvertent. She submitted that the court should disabuse itself of any questions and answers elicited on this topic in chief and also disabuse itself of any evidence elicited by the Crown on this topic through cross-examination. She cited the court's overarching duty to preserve trial fairness.

[12] Ms. Portolese argued that A.O.'s utterances to the police when first confronted by the police about an incident at work involving a girl, "Is this about G.B." is admissible as evidence of A.O.'s reaction which is relevant to his credibility and as circumstantial evidence that may have a bearing on guilt or innocence: R. v. Edgar, 2010 ONCA 529, [2010] OJ No. 3152 at para. 72. In other words, it's admissible as an exception to the hearsay rule which prohibits the introduction of prior consistent statements. It was argued that A.O. placed his reaction and comments in issue and was thoroughly cross-examined on the content of the utterance. Moreover, Ms. Portolese submitted that the Crown was not relying on the utterance for its truth (namely, its potential inculpatory value) but instead to impeach his credibility when he testified he thought it was a joke initiated by G.B.

[13] It is unfortunate that this evidence crept into the record. I accept that it may have been through inadvertence but in these circumstances, I am not persuaded that it would be fair to allow the Crown to rely on utterances of A.O. that were not proven to be voluntary beyond a reasonable doubt through a voir dire. The law is clear that the Crown cannot split its case and must lead any utterances of the accused in chief after proving they are voluntary. That was not done in this case and this is not meant to be critical. Ms. Portolese is right that the defence opened the door by leading evidence of A.O.'s reaction to being confronted by the police, but this was also coupled with an explanation of why he reacted the way he did, which is arguably a prior consistent statement. There was no formal defence application seeking admissibility. But at the same time, there was no objection from the Crown when it was lead. I accept Ms. Gavran's candour that this was inadvertent and her client's state of mind, at that time, is not really of any value to the issues in this case. At the same time, the Crown chose not to lead A.O.'s utterances to the police as part of their case. It was open to do so. There was no request to hold a voir dire either before or during his evidence. To do so during cross-examination would in these circumstances be unfair. Evidence that may be admissible as an exception to the hearsay rule still has to be proven to be voluntary by the Crown before it can be used. For these reasons, I have disabused my mind of all the evidence related to A.O.'s contact with the police including his reaction and what he may have said both in chief and in cross-examination. I rely on the instructive explanation of the law by Justice Ferguson in R. v. King [1998] OJ No. 662 at paras. 27-28. To be clear, I've gone further in the interests of trial fairness and ignored any evidence that resulted from this exchange, including A.O.'s evidence about all the females who were present at the restaurant.

[14] With these two legal issues aside, the sole issue for the court to determine is the credibility and reliability of the conflicting accounts. I must consider whether A.O.'s denials of sexually assaulting G.B. in the context of the evidence as a whole, is capable of raising a reasonable doubt about his guilt.

Reasonable Doubt

[15] Reasonable doubt is a matter of common sense and human experience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

Burden of Proof

[16] There was no onus on A.O. to prove his innocence. The burden remains with the Crown to prove his guilt beyond a reasonable doubt. In cases involving credibility assessments, the law requires that I apply the three-part test set out in W.D. v. The Queen, [1991] 1 S.C.R. 742 ("WD"). A.O. chose to testify in this case. Contrary to what Ms. Gavran submits, exposing himself to cross-examination does not mean this can be used as a makeweight on the credibility scale. Just like I wouldn't be able to hold this against him if he didn't testify. In simple terms, the WD doctrine requires me to resolve three questions:

(1) Do I believe A.O.? If so, I must find him not guilty;

(2) Even if I don't believe A.O., does his evidence leave me with reasonable doubt? If so, I must find him not guilty;

(3) Even if I reject A.O.'s evidence, based on the evidence which I do accept, has the Crown proven its case beyond a reasonable doubt? If so, I must find him guilty.

[17] Ms. Portolese argues that if the court accepts the account of G.B., the acts of touching her breast, without her consent, constitutes a sexual assault because if believed, the touching would have violated G.B.'s sexual integrity. I agree. For this reason, I do not have to review the law as it relates to sexual assault.

B. The Background Facts

The Parties

[18] At the time of the alleged incident, the parties were both employed at a Swiss Chalet restaurant located at […] Rd.

[19] A.O. is 54 years old and resides in Courtice, Ontario with his spouse and four children. He testified he has a criminal record for a conviction of Assault with a Weapon in 2004 for which he was placed on a two-year probation order. A court is permitted to consider a person's criminal background, which may impact on a credibility assessment: R. v. Corbett, [1988] 1 S.C.R. 670 at para. 21. I have not used this finding of guilt to engage in propensity type reasoning which is not permitted. In fact, the criminal record has limited value in this case.

[20] A.O. was employed at two different Swiss Chalet restaurants. He had been at the […] location for about 10 years. He worked as a line cook and prepared take-out orders.

[21] G.B. is 20 years old. She is attending Durham College in Whitby. She is in the first year of a two-year program in office administration. She testified she was employed at the Swiss Chalet for about 6 years. She mainly worked in the take-out section but also helped with service.

[22] Swiss Chalet requires employees to wear a specific uniform. G.B. said she had to wear black dress pants, a choice of two black shirts, one of which was a button-down polo shirt with 3 buttons, a black apron and black shoes. A.O. said his uniform involved black pants and a black top.

[23] The parties had worked together at Swiss Chalet for about 4 years. A.O. said his usual shift was the 4-10 pm shift. Sometimes, their shifts would intersect. This happened about 4 times per week. He described G.B. as very friendly. For example, when he would see her, she would say things like "I haven't seen you" and "I love you" and ask for a hug. On occasion, he would hug her. The defence did not argue consent or mistaken belief in consent. Moreover, G.B. knew personal details about his family including how many children he had, the occupation of his spouse as a PSW and his desire to retire in the Philippines. A.O. said he treated G.B. just like a daughter as his youngest son was close in age.

[24] G.B. said the two had a friendly work relationship. She was comfortable around him and she was used to "joking" around with him. She would engage in "normal" conversation at work. Sometimes they would discuss their families as he had a son who worked there too. She did not talk to him outside of work, nor did they exchange phone numbers or other contact details. It was strictly a work relationship.

[25] On March 27, 2018, both parties were working the closing shift. G.B. was set to punch out at 10 pm. Around 9:30 pm, A.O. "yelled" to advise he was going outside for a smoke. He believed the manager was in the office and both he and the servers would have heard him. This was something he had done in the past. He exited from the back hallway. Exhibit 1A and 1B are videos of the back area of Swiss Chalet. They were reviewed in court and I reviewed them several times on my own. They are poor quality with less than clear images. They do not depict the premises outside the restaurant, but only inside. In other words, they do not capture the alleged incidents, just the before and after. A.O. identified himself on the video, which shows him exiting to go outside. The time stamp reads 9:30 pm, which confirms his memory of when he went outside.

C. The Evidence

[26] The parties are diametrically opposed as to what happened outside in the rear parking area. In a nutshell, G.B. alleges A.O. attempted to touch her twice on her breast, while A.O. says there was no physical touching of any sort. He says it was the usual friendly banter with G.B. asking him for a cigarette, which he rebuffed. I will review the conflicting accounts before I turn to my findings of fact.

The First Alleged Incident

[27] A.O. said he stood outside and smoked a cigarette in a corner, which was about 2 meters away from the back door. He said the back has a parking area for the delivery drivers and a dumpster. A.O. said he was smoking with his right hand, which was usually the hand he would use to smoke his cigarette. In cross-examination he refused to accept that he would smoke with his left hand too. G.B. came outside carrying garbage. After dumping the garbage, she began to walk towards him and asked for a cigarette. He said "No, I don't want to". In cross-examination he said G.B. always asked him for a cigarette and he said "No I don't want to go to jail". G.B. denied this. G.B. then proceeded to ask him for a hug. G.B. denied this too. He said: "Maam, no I don't want to". A.O. asked her for a favor explaining that if there was a take-out order, if she can do it or wait for him until he returns inside. G.B. responded: "Oh you're very funny". G.B. went back inside. He continued to smoke outside. He denied any arguments and similarly, denied any touching of any sort. After he went inside, he finished his shift, cleaned up and left. He didn't talk to anybody on his way out.

[28] G.B. said on the date in question, she was wearing a black golf t-shirt which had 3 buttons. She said 2 were fastened while the top one, near her collarbone in the centre of shirt was left undone. It was showing "a little bit of skin but nothing crazy".

[29] G.B. acknowledged taking garbage outside to the dump. She opened the back door and noticed A.O. was standing near the door, smoking. She said he was not standing in the corner because the door almost hit him. She joked about this and proceeded to the dumpster. While returning from the dumpster, she told him "you shouldn't do that", referencing him smoking a cigarette. While standing 2 feet away, A.O. responded "you're so cute". She felt uncomfortable and didn't reply. A.O. denied this.

[30] At this point, G.B. said A.O. reached towards her and tried to pinch her nipple. She explained that with his right hand, his fingers were clasped with his thumb and index finger and he reached over and touched the outside of her shirt and made contact with her breast. She moved his arm away with a stern voice stating "that's not okay". G.B. said she never consented to this by words or actions. She said he was holding the cigarette in his left hand.

The Second Alleged Incident

[31] G.B. said despite the warning, A.O. moved forward and reached down inside her shirt with his wrist and tried to touch her breast but she was able to move his hand away before anything escalated. She said his hand touched the skin on top of her bra. She told him again "it wasn't okay". She said she didn't consent to this by words or actions. She became upset and went inside. While inside, she noticed that all of her buttons were undone.

[32] A.O. testified there was no second incident, as he never tried to touch her.

The Post-event Demeanor

[33] G.B. said after the incident, she returned to work despite being stunned, shocked and overwhelmed. There were 15 minutes left in her shift. She finished her shift and went home. While en route, she called her best friend. She did not call her parents or the police immediately. When she got home, she told her mother and step-dad. The following morning, she spoke to her manager and then called the police.

[34] The Crown called S.P. She has been employed at Swiss Chalet for 14.5 years as a waitress. On March 27th, she was working the 4-9:30 pm shift. She knows both parties. S.P. said over time, her and G.B. became "close friends". They would work together usually two times per week. She said both had a "bubbly" personality.

[35] S.P. explained that towards the end of the shift, which I find was after the alleged interaction with A.O., she interacted with G.B. who was standing in the window of the pantry area. She was taken aback because she had a "blank like ghost scare and was very pale". She asked her if she was okay. She said she didn't appear okay as her demeanor didn't match with her "usual" demeanor. S.P. couldn't recall the whole interaction. In cross-examination, S.P. said she didn't tell the police she looked pale and had a blank stare. Further, she said she could not recall if there was anything unusual about her uniform. She said nothing stood out to her, but she was never specifically asked if she saw her with a polo shirt with unfastened buttons.

D. Findings and Analysis

[36] A criminal trial is not a credibility contest. A fair verdict must be based on a consideration of the evidence as a whole. I must consider the answers of a witness, not the questions of counsel. A verdict cannot solely be based on my impression of the witnesses. Both parties pointed to demeanor evidence. Post-event demeanor or emotional state evidence is admissible and may be used to support a complainant's evidence of a sexual assault: see Murphy and Butt v. The Queen, 2 S.C.R. 603 at 617; R. v. Boss, (1988), 46 C.C.C. (3d) 523 (Ont. C.A.); R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036 (C.A.) at para. 7. That said, reliance on demeanor either outside or inside a courtroom on its own to resolve a credibility issue must be approached cautiously: R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628 at para. 14; R. v. Hemsworth, 2016 ONCA 85 at para. 45.

[37] Credibility assessments in sexual assault cases are notoriously difficult. It is an error of law to rely on pre-conceived views about how sexual assault victims would or should behave: R. v. Cepic, 2019 ONCA 541 at para. 2; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. While arguments about "common sense" are often used in assessing credibility, in sexual assault cases, courts are cautioned against doing so because it can "mask reliance on stereotypical assumptions": R. v. A.B.A., 2019 ONCA 124, 372 C.C.C. (3d) 301, at para. 7; Cepic, supra at para. 1; R. v. T.G., 2018 ONSC 3847, [2018] O.J. No. 3293 (SCJ) at paras. 24-30.

[38] Ms. Gavran submitted that A.O. presented as a credible witness who was not shaken in cross-examination. He gave a plausible denial. In contrast, she says G.B. was not a credible witness. She said the court should reject her evidence or be left in doubt based on (i) inconsistencies in her account, (ii) implausibility of her account, (iii) exaggeration and (iv) evidence which is contradicted by the two videos.

[39] In response, Ms. Portolese argues that G.B. was unshaken on her core allegation that she was sexually touched without her consent. She says G.B. gave a coherent and compelling account, which is confirmed by her post-event demeanor witnessed by S.P. She says A.O. was not a credible witness because he was evasive, internally inconsistent and gave self-serving evidence.

First Step of WD

[40] When I consider the evidence as a whole, I reject A.O.'s denial. I found him to be an evasive witness which impacts my assessment of his credibility. I have been careful to not apply a higher standard to his evidence, particularly because he was testifying with an interpreter. To be clear, it was the substance of his evidence, not the manner in which it was presented which was problematic. I have rejected A.O.'s residence for the following reasons.

[41] First, I agree with the Crown that A.O. was an evasive witness on important points. A.O. has lived and worked in Canada for 29 years. It's clear he understands and speaks the English language. An interpreter was requested because it's true that legalese may be difficult for the lay person to understand. I don't attribute his evasiveness to language or comprehension issues. There were several examples of him being evasive. For example, the Crown asked him a simple question about his understanding that if somebody smacked his hand, it is a non-verbal cue and it means the person does not want them to touch her. This was a strategic question because it tested his understanding of non-verbal cues but also his understanding of non-consent. It is an easy thing to concede and A.O. refused to admit this. He stated: "I won't let her do it". This is curious because the Crown never suggested the person was a "she". This suggests he was trying to distance himself and be evasive. It was only after repeated questions that he came around. Another example was when the Crown suggested he would be more comfortable with his co-workers than "outside people". He said no, which doesn't make sense, especially because he was employed at the restaurant for years.

[42] Second, I found A.O. internally inconsistent. I have examined both this evidence on its own and in the context of all the evidence to determine the importance of the internal inconsistency: R. v. W.R.P. (2007), 2007 ABCA 187, 220 C.C.C. (3d) 519 at para. 11 (Alta.C.A.). In chief, he agreed he knew G.B. for 4 years and the two had a friendly work-based relationship. She would joke with him often, so much so, he may have even hugged her when asked. However, in cross when it was put to him that he spoke to her differently than his other workers, he said "I don't talk to her too much, except for orders". That is inconsistent with his admitted "joking" manner and his admission that she knew details about his family and personal life. Later on, he admitted "she was always joking with me". This is important because it was another example of him trying to create distance between himself and G.B.

[43] Third, there were examples of A.O. minimizing his evidence. No doubt, a denial is difficult to pierce but when a witness overemphasizes evidence, which alone is not incriminating, it becomes a cause for concern because it shows one is unbalanced. For example, he said G.B. asked him for a cigarette "every time" she saw him. This is curious that he would remember this over 4 years, after hundreds of shifts. There would be no reason to recall this. He said he "always smokes with his right hand", which is also curious to be sure of especially as the Crown says, on his version, nothing happened. It is not inconceivable that a cigarette would transfer hands, at least on some occasions even for seconds. He didn't even allow for this reasonable possibility. I reject his evidence that G.B. asked for a cigarette which he rebuffed with "I don't want to go to jail". In my view, this was another example of minimizing his role because the comment is illogical in light of his evidence that she would always ask for a cigarette, implying he would always be worried about going to jail for some reason, yet he continued to have a joking and friendly relationship with her over the course of 4 years.

[44] Having rejected A.O.'s denials, the evidence as a whole does not leave me with a reasonable doubt about his guilt. I now turn to the rest of the evidence.

Second and Third Branches of WD

[45] Ms. Gavran argues that the court should reject the evidence of G.B. because it was inconsistent which makes her less credible.

[46] Ms. Portolese says she was not inconsistent because she explained the alleged differences and in any event, they were immaterial. I agree with the Crown.

[47] As a matter of law, inconsistencies on minor matters of detail are to be expected and don't generally affect the credibility of the witness. However, where the inconsistency involves a material matter in which an honest witness is unlikely to be mistaken, the inconsistency can "demonstrate a carelessness with the truth": R. v. M.G., [1994] O.J. No. 2086 at para. 23. In R. v. Stewart (1994), 18 O.R. (3) 509 (Ont. C.A.) Justice Finlayson at pp. 519-520, reminded that the trial judge should look at the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue. The law requires courts to focus on important inconsistencies which impacts the question of credibility: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at para. 35. Finally, a witness can explain an alleged inconsistency which may neutralize its importance.

[48] First, Ms. Gavran argues that G.B.'s account that she took out the garbage around 9:40 pm is contradicted by the video which has a time stamp of 9:31 pm. I understood that the two videos were disclosed as part of Crown disclosure. The parties agreed to make them exhibits, even though I did not hear any evidence about how the video was created and whether in fact, the time stamp was accurate. These are issues that go to the weight, not admissibility of the video. When confronted with the video, G.B. agreed that the time stamp was accurate and said she recalled the time as 9:30 based on a clock in the restaurant, but admitted based on the video, that it could be 1-2 minutes later. I don't see this as an important inconsistency because the core complaint is a brief interaction with A.O., followed by 15 minutes before her shift ended. The complaint is not that the interaction lasted for a while.

[49] Second, G.B. testified that the whole incident took "1-2 minutes" from the time she stepped outside to returning inside. However, in cross-examination, she admitted telling the police that the whole incident took "about 3 minutes". This is a minor matter because she explained she used the clock in the restaurant and allowed for the suggestion that she was incorrect about the time. She also broke down the interaction in parts while testifying which neutralizes the difference.

[50] Third, G.B. testified that during the second incident, A.O. touched "the top part of her breast". In cross-examination, she admitted agreeing with the police that his hand didn't touch her bare breast. She recalled stating this but explained that she thought the officer was asking if he touched her breast, under her bra and she said no. I don't find this to be an inconsistency because the officer wasn't clear in the question. Related to this is her evidence about the number of buttons. She explained she was mistaken in saying there were 4 buttons and meant to say there were 3 with 1, the top was undone. I found G.B. to be careful and admit when she made a mistake. I agree she corrected herself sometimes before she was challenged with a prior statement. This shows a balanced witness.

[51] Next, Ms. Gavran said G.B. omitted important evidence to the police which impacts her credibility. I disagree.

The only real substantive omission is her admission that she never told the police A.O. was smoking with his left hand. G.B. said she was never asked and was overwhelmed. I accept this. She was not impeached, by for example, the video which might have shown the whole exchange. On a more minor point, G.B. agreed she never told the police she "pointed" at A.O. when reprimanding him for smoking a cigarette, but this is an insignificant detail. It adds nothing to the core allegation. I've also considered that she didn't use the word "aggressively" with the police but the point she did make and she remained consistent about in the courtroom is that his action resulted in the unfastening of her buttons.

[52] The last area of attack was the alleged implausibility of the act. A credibility evaluation can be impacted by testing the account against when and where the alleged event(s) took place to determine if it (or they) was implausible: R. v. R.H.A., [2000] OJ No. 2610 (CA).

[53] Ms. Gavran says the incident was implausible because there's no way A.O. could have put his wrist in her shirt in less than 2 seconds and he would have burned her if he reached in with his right hand. This argument has no merit because it assumes I accept the evidence of A.O. he was smoking with his right hand. For the above reasons, I do not. It is perfectly plausible to hold a cigarette in the left hand and extend the right hand to touch the breast which would leave no burn. The timing is completely plausible. G.B. said the whole incident didn't take long. She did not say he kept his hand on her chest. She was able to cover herself almost immediately. I fail to see how the act wouldn't be possible. The two parties were outside, alone, and the acts happened in quick succession.

[54] Ms. Gavran also says G.B.'s demeanor is contradicted by the video which shows her entering the restaurant area. I disagree. S.P. was not challenged on her evidence which was clear: she saw G.B. with a pale look. The video does not help me in contradicting or even evaluating this evidence because it's not clear. Nor was this seriously put to S.P. For example, she was never asked to compare her demeanor on the night in question with that of the video, so there's no evidence of a contradiction. I found G.B. to be very credible. She was never challenged on whether she colluded with G.B. or was biased. The simple fact they are friends doesn't mean she's more likely to lie under oath. The fact she never told the police something but remembered it in the courtroom is of no moment, especially because there's no evidence she was told or required to memorize the event immediately after the event. She wasn't seriously challenged on why she didn't tell this to the police. Nor was she challenged on the state of G.B.'s shirt. She was never asked if she saw an unbuttoned shirt. Her evidence that it wasn't unusual means very little in this context.

[55] The argument that one would expect a certain demeanor after being sexually assaulted, which is allegedly missing on video, is without merit because it goes directly to a "common sense" type argument about how a victim is expected to behave after being sexually assaulted, which is a myth. People react differently to being assaulted, let alone, being sexually assaulted. See Cepic, supra. This was a workplace event with a person she's known for 4 years. Similarly, the argument that she did not immediately tell her manager or the police is also without merit based on the same myth-based reasoning. See for example, R. v. P.(D.), 2017 ONCA 263.

[56] Finally, the argument that the video contradicts the state of her shirt also is without merit. I have seen the video and it's difficult to discern whether in fact all or some of the buttons are undone. I'm left with the evidence of G.B. which I accept. This was a compelling detail. It is logical that A.O. would cause the buttons to unfasten with his action and her physical response.

[57] For all the above reasons, I found the evidence of G.B. compelling and credible. She did not exaggerate. She was careful and balanced. The complaints against her credibility are without any meaningful or legal merit. When I consider the evidence as a whole, including A.O.'s denial, which I rejected, I find the Crown has met their high burden of proving that A.O. committed a sexual assault.

[58] There will be a finding of guilt.

Released: January 22, 2020

Signed: Mr. Justice F. Javed

[1] There is a ban on publication pursuant to s. 486.4(1) of the Criminal Code.