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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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

CITATION: R. v. Sahid, 2021 ONCJ 62

DATE: February 5, 2021

ONTARIO COURT OF JUSTICE

Old City Hall - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HAVAL SAHID

For the Crown
K. Stewart

For the Defendant
K. Dulysh

Heard: January 7, 2021

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Sahid is charged with a single count of sexual assault arising out of an encounter with K.Y. on September 13, 2019.

[2] Mr. Sahid is a masseur. K.Y. was one of his clients. This was her third scheduled massage with him. She alleges that during the massage he touched her in a manner that exceeded the boundary of the consent she had granted him as her masseur. The Crown alleges that this touching constitutes a sexual assault.

[3] The Crown called only one witness – K.Y. Mr. Sahid did not testify and called no other witnesses.

B. THE EVIDENCE

[4] K.Y. is an acupuncturist and a Shiatsu masseuse. She had been suffering from some discomfort as a result of a recent pregnancy that had been delivered by Cesarean section. She sought massage relief from the studio where Mr. Sahid worked and had been assigned Mr. Sahid for her first Thai massage earlier in the summer of 2019 that she had found very helpful. She thus booked a second massage with Mr. Sahid and then a third from him for September 13, 2019.

[5] The first two massages were administered on the main floor of the massage studio. These massages took place on mats on the floor. The massage areas were somewhat segregated from each other by movable curtains. These two massages were full-body massages that involved stretching and pressure. They lasted about 90 minutes. K.Y. wore a loose-fitting garment supplied by the massage studio for these two massages. Neither of the first two massages involved Mr. Sahid putting his hands under her garment. There was no skin on skin contact in either of these first two massages.

[6] On the third occasion, Mr. Sahid asked K.Y. if she would prefer a massage on a table instead of on a mat on the floor. She said it was up to him and he thus chose to administer the September 13 massage on a table in one of the private rooms in the basement.

[7] On this occasion K.Y. did not wear the loose garment supplied by the massage studio on the first two occasions, but rather wore her own tank top and tight-fitting yoga pants, or tights. Mr. Sahid left the room while she took off her sweater and he then returned to administer the massage.

[8] At one point during the massage, K.Y. was lying on her back with one leg flexed at the knee and positioned such that her legs were open, giving Mr. Sahid access to her inner thigh. He massaged her inner thigh and got close to the top if her inner thigh, quite near her vagina. She got uncomfortable and closed her legs, saying that she was having trouble stretching that far.

[9] Later during the massage, while she was still on her back, Mr. Sahid massaged her hip flexors, which run from the bottom of her abdomen into her pelvis. While doing so, he put his hands inside her pants and applied his hands directly to her skin while massaging those muscles. K.Y. again felt uncomfortable and excused herself to go to the bathroom where she hiked up her pants, thinking that Mr. Sahid had put his hands inside her pants because the elastic waistband was getting in his way.

[10] Later during the massage, K.Y. was again lying on her back and Mr. Sahid was standing near her head, leaning over her and massaging her abdomen. K.Y. nodded off. When she came to, she felt his hands on the skin of her abdomen, moving from her diaphragm towards her pubic bone. When his hands got to the level of her C-section scar, about an inch above her pubic bone, she grabbed them and yanked them out of her pants. She heard the elastic of her underwear snap.

[11] She said to him, “can you not put your hands in my pants”. He said, “I’m not trying to turn you on”. She then said, “I know what you’re up to”. Even though she believed what he was doing was legitimately in pursuit of treatment, she feared that if she didn’t stop him, he would have gone lower and lower in the direction of her private parts. He said, “it’s better skin on skin” and she said that she didn’t want him inside her pants.

[12] The massage continued for a few minutes, but he did not seem to be particularly “into it” anymore.

[13] K.Y. put her sweater on and left. She complained to Mr. Sahid’s employer several days later, only after discussing the matter with her friends who were shocked. She contacted the police approximately a month after the massage in question.

C. THE POSITIONS OF THE PARTIES

[14] Ms. Stewart does not argue that Mr. Sahid’s touching of K.Y.’s inner thigh was a sexual assault. Nor does she argue that his touching of K.Y.’s hip flexors with his hands in her pants constitutes a sexual assault. She argues that only his touching of her abdomen just above her C-section scar was a sexual assault.

[15] Ms. Stewart concedes that the putting of his hands inside K.Y.’s pants and underwear is not per se a sexual assault. Rather, it is the touching of the area just above her pubic bone that is the offence.

[16] She further submits that, if I do not accept that argument, I should find that the evidence supports a finding beyond a reasonable doubt that Mr. Sahid was attempting to move his hands to his final destination – her vagina, and is thus guilty of a sexual assault by virtue of that attempt.

[17] Finally, she argues that if she has failed to prove a sexual assault, the evidence supports a conviction for the lesser included offence of simple assault.

[18] Ms. Dulysh argues that Mr. Sahid’s touching of K.Y. never amounted to a touching “in circumstances of a sexual nature”. Alternatively, she argues that even if a touching of the area near K.Y.’s pubic bone could be viewed as a touching in circumstances of a sexual nature, its proximity to K.Y.’s hip flexors along with K.Y.’s initial conclusion that Mr. Sahid was touching her therapeutically when this occurred, raise a reasonable doubt as to whether the touching of this area was intentional.

[19] Ms. Dulysh also argues that K.Y.’s assertion that she did not consent to Mr. Sahid putting his hands under her pants is not credible.

[20] Lastly, she argues that there is insufficient proof of both a lack of consent, and knowledge by Mr. Sahid of such lack of consent, as concerns the alleged included offence of simple assault.

D. ANALYSIS

(a) The law

[21] The definition of sexual assault is found in the Supreme Court’s decision in R. v. Chase, 1987 CanLII 23 (SCC), [1987] S.C.J. 57 at para. 11:

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer"… 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… 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, that 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.

(b) Did Mr. Sahid intentionally touch K.Y in a sexual nature?

[22] All the circumstances surrounding the impugned touching are relevant to whether the touching was “committed in circumstances of a sexual nature, such that the sexual integrity of” K.Y. was violated. No one aspect of the circumstances is dispositive of this issue. The onus, of course, is on the Crown to prove both aspects of this test beyond a reasonable doubt.

[23] In my opinion, the three most significant aspects of the circumstances are: (1) where on K.Y.’s body she was touched, (2) K.Y.’s opinion at the time of the touching as to whether her sexual integrity was violated, and (3) Mr. Sahid’s purpose in touching K.Y.

[24] As concerns the area where K.Y. was touched, while it was not far from her genitals, it was not on her genitals, breasts, lips or buttocks.

[25] As concerns K.Y.’s view of the touching at the time, she readily admits that, as she told police, she believed at the time that the touching was legitimately done by Mr. Sahid in pursuit of treatment. She stopped him because she feared that if she didn’t stop him, he would have gone lower and lower in the direction of her private parts. Her reaction and opinion at the time raise significant doubt that the touching violated K.Y.’s sexual integrity.

[26] As concerns Mr. Sahid’s purpose in touching K.Y. in the vicinity of her scar, near her pubic bone, Ms. Stewart points to Mr. Sahid’s decision to offer the massage in a more private setting, the fact that he did not put his hands on K.Y.’s bare skin in the first two massages, and his immediate, reflexive response that he was not trying to turn K.Y. on as supporting a finding of sexual purpose on his part.

[27] Although this aspect of the circumstances need not be proved beyond a reasonable doubt, for the Crown to rely on Mr. Sahid’s sexual purpose in support of a finding of sexual assault, the Crown must nonetheless satisfy me that the evidence favours a finding of sexual purpose before she can rely on it. I am not persuaded that it does.

[28] As concerns Mr. Sahid’s spontaneous utterance, “I’m not trying to turn you on” to K.Y. when she pulled his hands out of her pants, I am not convinced that it was true, but I am also not convinced that it is not. Indeed, I find that the statement might be true. It thus contributes to the raising of a doubt on the issue of sexual purpose.

[29] The massage context also undermines the Crown’s argument. In a situation where one would not normally expect contact, Mr. Sahid’s hands under K.Y.’s clothes in a place so close to her genitals would leave a reasonable observer convinced of a sexual purpose. But in the context of a massage, and a working relationship based on close physical contact, such a conclusion is anything but obvious.

[30] Nor am I convinced beyond a reasonable doubt that Mr. Sahid’s touching of K.Y. just above her pubic bone was intentional. Ms. Stewart concedes that a touching, under the clothes, of the hip flexors, is not a sexual assault. As K.Y. explained, the hip flexors are immediately adjacent to her C-section scar. It is quite possible that Mr. Sahid’s impugned touching of the area in question was accidental, as he tried to massage her nearby hip flexors.

[31] I am thus not convinced beyond a reasonable doubt that Mr. Sahid intentionally touched K.Y. in circumstances of a sexual nature such as to violate K.Y.’s sexual integrity.

[32] Nor am I convinced beyond a reasonable doubt that Mr. Sahid was attempting to do so, and had not yet succeeded when stopped by K.Y. This doubt is fueled by the very same considerations set out above.

(c) Is Mr. Sahid guilty of simple assault?

[33] Given my findings, it was not necessary to deal with the notion of consent in my treatment of the alleged sexual assault. It is, however, necessary in the context of the alleged simple assault.

[34] To prove an assault the Crown must prove beyond a reasonable doubt that (1) Mr. Sahid intentionally touched K.Y., (2) she did not consent to that touching, and (3) he knew of, or was reckless or wilfully blind to, the fact that K.Y. was not consenting to that touching. R v Park, 1995 CanLII 104 (SCC), [1995] 2 SCR 836.

[35] In the context of a massage, where it is expected that the masseur will touch almost every part of the client’s body, and considering the history of the masseur-client relationship between Mr. Sahid and K.Y., I am not convinced beyond a reasonable doubt that Mr. Sahid either knew, or was reckless or wilfully blind to the fact that K.Y. did not consent to him touching her under her clothes, assuming she did not consent to such a touching. At no time prior to the alleged assault did K.Y. tell Mr. Sahid that she did not consent to him putting his hands under her clothes, even though he had already done so. The Crown has not proved that the boundaries of consent to touching, in this relationship that was all about touching, were understood by Mr. Sahid to exclude his touching K.Y. under her clothes.

(d) K.Y.’s credibility as concerns the issue of consent?

[36] Given my conclusions as concerns the alleged sexual assault and the alleged simple assault I need not address the attack on the credibility of K.Y.’s assertion that she did not consent to the alleged touching, although I will say that I am convinced that K.Y. at no time consented to being touched by Mr. Sahid in a sexual manner.

E. CONCLUSION

[37] In the result I find Mr. Sahid not guilty of both sexual assault and simple assault.

Released on February 5, 2021

Justice Russell Silverstein