DATE: April 12, 2022

ONTARIO COURT OF JUSTICE Old City Hall – Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — RONALD BAIDER

For the Crown: T. DiMuzio For the Defendant: L. Board Heard: February 9 and 10; March 9, 2022

REASONS FOR JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Ronald Baider is charged with a single count of sexual assault, alleged to have been committed against L.L. on March 10, 2020.

[2] The Crown proceeded summarily, and Mr. Baider pleaded not guilty. Mr. DiMuzio called two witnesses: L.L.; and Jembere Seyoum, who witnessed the incident in question. Mr. Baider did not testify nor call any witnesses.

[3] The charge arises out of a workplace incident. L.L. was working as a security guard in a parking garage. Mr. Baider was her supervisor on the day in question.

[4] L.L. lost what has been referred to as a “site phone”. After looking everywhere for it she called Mr. Baider, who drove to the parking garage and helped her search for it. Having failed to find it, Mr. Baider performed a quick search of L.L. herself. L.L. alleges that during this search Mr. Baider put his hands under her vest and rubbed her breasts. Ms. Board, counsel for Mr. Baider argues that the evidence does not support a finding that Mr. Baider did anything more than a cursory, consensual, non-sexual, pat down of L.L.’s pockets.

[5] The first issue to be decided is: (1) Has the Crown proven beyond a reasonable doubt that the search was a sexual touching. If so, the parties agree that the offence of sexual assault is made out as there is no doubt that L.L. did not consent to a sexual touching at the hands of Mr. Baider and he knew that.

[6] The second and third issues arise in the context of the included offence of simple assault. They are: (2) If the touching was not sexual, did L.L. consent to the search, and (3) if not, has the Crown proven beyond a reasonable doubt that Mr. Baider knew she did not consent to the search.

[7] Finally, if all the Crown has proven is an assault, Ms. Board argues that the assault is so trifling as not to warrant a finding of guilt by application of the maxim: de minimis non curat lex. (The law does not concern itself with trifles.)

B. THE EVIDENCE

(a) L.L.’s testimony

[8] What follows is a review of what I find are the salient aspects of L.L.’s testimony in chief.

[9] At the time of the incident L.L. had been employed for just over two weeks as a security guard for Garda World. She was assigned to a parking garage at Dundas Square. She had been issued a uniform which, among other things, included dark pants with two pockets, a polo shirt and a knife-proof vest to be worn over the polo shirt. She was wearing this uniform on the day of the incident.

[10] One of her duties was to do hourly rounds of the three floors of the parking garage. To do so she employed a “site phone”, which was a specially programmed cell phone issued by Garda World. L.L., as well as her employer, considered the site phone to be an important piece of equipment.

[11] Late in the afternoon of March 10, 2020, after her hourly patrol, L.L. returned to the office Garda World shared with the parking authority and realised she had lost the site phone. She looked throughout the office for it but to no avail. She then retraced her patrol and still could not find it.

[12] She then decided to call her supervisor. Garda World’s supervisors are assigned to different sites at random. It just so happened that the supervisor that day was Mr. Baider. Mr. Baider told L.L. that he would drive to the site and help L.L. deal with the lost site phone.

[13] L.L. had encountered Mr. Baider before. One day, earlier in her employment, L.L. was called into work unexpectedly and needed a lift to work, which the company supplied. Mr. Baider was assigned to drive her home that day. According to L.L., during the ride Mr. Baider commented on the affluence of the neighbourhood and asked her what her parents did for a living. L.L. felt uncomfortable and asked to be let out at a corner near her home.

[14] When Mr. Baider arrived at the garage on March 10, he met L.L. in the parking office. They spent 30 minutes together retracing her steps through the parking garage and then returned to the office. Two parking garage employees were in the office at that time.

[15] According to L.L., as she was standing facing Mr. Baider, with her hips resting against a desk, he announced that he was going to search her and put both his hands under her vest, above her shirt and moved them back and forth over her breasts. He then ran both his hands down her legs, with one hand on the inside of her thigh and one hand on the outside. She testified that the touching of her breasts lasted six seconds and the touching of her thighs lasted seven seconds.

[16] L.L. testified that she did not consent to this “search” and was extremely upset by it. She did not protest when Mr. Baider announced he was going to search her because she had only recently begun her employment and did not want to lose her job. After the search she began crying and Mr. Baider left. At the urging of the parking employees, she called her account manager, Bob Holloway, whom she considered her boss. He told her that the company would investigate the matter and that Mr. Baider would not be at her workplace while the investigation continued.

[17] L.L. continued to work for Garda World and saw Mr. Baider at the work site several more times after the incident. L.L. went to the police when it became apparent to her that her employer was doing nothing about her complaint.

(b) The salient aspects of the cross-examination of L.L.

[18] L.L. wrote an email to her employer’s human resources department within a few hours after the incident. She complained to the police in July 2020. She subsequently retained a lawyer to sue her employer.

[19] L.L. testified that she did not know how much money her lawyer was seeking in the draft claim that she reviewed. She is not interested in the money. She wants to make sure this sort of thing doesn’t happen to others. She went to police only because it was clear to her that her employer was not taking the matter seriously, as evidenced by the fact that Mr. Baider continued to visit her workplace after she was told that he was forbidden from doing so.

[20] While she testified that there were no pockets on the outside of her vest, she conceded that she had said there were such pockets in the email she had sent to HR and that that was true.

[21] L.L. testified that she said nothing when Mr. Baider announced he was going to search her. She said she did not want to be searched but said nothing because she feared she would lose her job if she refused to be searched. Ms. Board suggested to her that she had said “ok” when told she would be searched. L.L. responded to this by saying that she had no recollection of saying anything. She merely froze and said nothing. Ms. Board then asked if it was possible that L.L. had said “ok”. L.L. conceded that it was possible she had said “ok”. She added that if Mr. Baider had asked permission, she might have let him search her.

[22] L.L. admitted that after the search she told Mr. Seyoum, who was standing nearby, that she was upset because she thought Mr. Baider had treated her the way he did because she was black and because he suspected she was a criminal.

[23] L.L. conceded that she did not tell HR in her email about the time Mr. Baider drove her home and only raised it for the first time in her statement to police in July. She denied that she fabricated this incident to police to make Mr. Baider look bad.

(c) Jembere Seyoum’s evidence

[24] Mr. Seyoum worked for over 30 years in customer service for the Toronto Parking Authority. He is now retired. He, and a student, were in the office on March 10, 2020, when L.L. lost the site phone.

[25] She was quite upset at having misplaced it. Mr. Seyoum and the student were there when Mr. Baider arrived and were in the office when Mr. Baider and L.L. returned from their search of the parking garage.

[26] Mr. Baider looked through the desk drawers and L.L.’s backpack.

[27] From approximately two meters away, and with an unobstructed view, Mr. Seyoum saw Mr. Baider first briefly pat L.L.’s pants pockets and then briefly pat the pockets on the outside of her vest, over her breasts. He heard nothing said by either Mr. Baider or L.L.

[28] The entire touching of L.L. lasted no more than five seconds. Mr. Seyoum was unequivocal in his testimony to the effect that Mr. Baider never put his hands under L.L.’s vest nor on the inside of her thighs.

[29] L.L. was crying after the search. She told Mr. Seyohum that she was upset because her supervisor did not seem to trust her and because she felt that Mr. Baider’s decision to search her was motivated by the fact that she is black.

C. ISSUES AND ANALYSIS

(a) Introduction

[30] What follows is a discussion of the principal issues identified by the parties in their submissions.

(b) The credibility and reliability of the witnesses’ testimony

[31] As concerns the details of the search itself, because of the starkly irreconcilable descriptions from L.L. and Mr. Seyoum, I find it unnecessary to address the questions of credibility and reliability in detail. Mr. Seyoum is an independent witness whose evidence was not undermined on cross-examination. He was in an excellent position to see the interaction between L.L. and Mr. Baider. Regardless of what accounts for the discrepancy between their testimony, I cannot find as a fact that Mr. Baider searched L.L. the way she said he did. I accept Mr. Seyoum’s testimony on this issue.

[32] As for what words were exchanged between L.L. and Mr. Baider preceding the search, L.L.’s credibility and reliability are significant.

[33] While there is no doubt that L.L.’s position in her civil action would be enhanced by a conviction of Mr. Baider, and that this provides a motive to fabricate, I do not find that L.L. is colouring her testimony with that in mind.

[34] There are some inconsistencies in L.L.’s evidence, but they do not cause me to doubt her credibility.

[35] As concerns the reliability of her testimony, to the extent that her account of the incident differs from Mr. Seyoum’s account, her reliability is somewhat suspect. That having been said, I have no doubt that the search Mr. Baider performed upset her. I also find as a fact that he announced that he was going to search her and that she did not tell him not to touch her. There is no evidence that she said he could search her, although that remains a possibility on her own evidence.

[36] Whether L.L. simply did and said nothing or said “ok” when Mr. Baider said he was going to search her, I accept that she reacted to his announcement the way she did out of fear of losing her job. I also find that L.L. was upset about being searched for the reasons she expressed to Mr. Seyoum after the search, i.e. she felt targeted as a black person, and felt angry that she had been suspected of theft.

(c) If the search amounted to an assault, was it a sexual assault?

[37] Assuming an assault occurred, for the purposes of dealing with this issue, whether the search performed by Mr. Baider amounts to a sexual assault stands to be determined by application of the test set out by the Supreme Court in R. v. Chase, [1987] 2 S.C.R. 293 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" (Taylor, supra, per Laycraft C.J.A., at p. 269). 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 (see S.J. Usprich"A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L. Q. 200, at p. 204.) 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.

[38] In the case before me there is no evidence of any sexual motive on the part of Mr. Baider. The circumstances point to just the opposite. The entire interaction between the parties was focussed on finding the site phone. The only aspect of the circumstances that would support a finding that the touching occurred in “circumstances of a sexual nature” was the fact that Mr. Baider touched the outside of L.L.’s vest in the vicinity of her breasts. This touching was so brief, and so much in the context of the search for the phone, that no reasonable observer could see it as a sexual touching. See R. v. Shallow, 2009 ONSC 4200; Mason v. Turner et al, 2014 BCSC 211.

[39] The above finding is sufficient to arrive at the conclusion that the Crown has not proven a sexual assault, if indeed this was an assault at all. I thus need not determine whether the search violated L.L.’s sexual integrity. But I note in that regard that L.L.’s claim to have been sexually violated is based on her interpretation of the mechanics of the search that I do not accept as accurate.

(d) Has the Crown proven that L.L. did not consent to being searched?

[40] I have no doubt that L.L. did not want to be touched by Mr. Baider in any way. I am also convinced that her strong negative reaction to being touched was genuine, and in large part the result of having endured the touching, even though she explained her upset to Mr. Seyoum in other terms.

[41] Mr. DiMuzio argues that a finding that L.L. did not want to be touched is dispositive of the issue of consent and notwithstanding anything she may have said or done, proves beyond a reasonable doubt that L.L. did not consent.

[42] He further argues that if L.L. did “consent” that consent was vitiated by Mr. Seyoum’s exercise of authority. He reminds the Court of s. 265(3)(d) of the Criminal Code that says:

…[N]o consent is obtained where the complainant submits or does not resist by reason of the exercise of authority.

[43] It is important to note that the Criminal Code treats consent in the context of a simple assault (in s. 265) somewhat differently than consent in the context of a sexual assault (in s. 273.1). As concerns this case, this difference plays out in the Code’s varying treatment of the power imbalance between the parties. Section 265(3)(d) requires a more active exercise of authority than does s. 273.1(2)(c). R. v. Snelgrove, 2019 SCC 16; R. v. Lutoslawski (2010), 2010 ONCA 207, 258 C.C.C. (3d) 1(Ont. C.A.), aff’d 2010 SCC 49, [2010] 3 S.C.R. 60.

[44] Dealing with this issue first, if indeed L.L. did consent (which I shall address below) I am convinced on the evidence that Mr. Baider had authority over L.L. I accept her evidence that Mr. Baider was her supervisor. His job title bespeaks authority over her. I am not convinced, however, that he exercised that authority when he announced that he was going to search her. She testified that she believed that a negative report from him to her boss could lead to her dismissal, but no evidence was called that Mr. Baider made any threat to report her to her boss, nor is there any other evidence to support a finding of an “exercise” of authority. R. v. Matheson (1999), 44 O.R. (3d) 557 (C.A.); Cf. R. v. Geddes, 2015 ONCA 292.

[45] As to whether L.L. consented, the law is clear that lack of resistance does not amount to consent, nor does acquiescence to the inevitable. R. v. M.L.M., [1994] 2 S.C.R. 3: R. v. Stanley (1977), 36 C.C.C. (2d) 216 (B.C.C.A.).

[46] The law of consent in the context of an alleged sexual assault is set out by the Supreme Court in R. v. Ewanchuk, [1999] 1 S.C.R. 330. It is important to note that this decision was rendered when the law of consent was no different in the context of a sexual touching than in a non-sexual touching.

[47] Ewanchuk, at paragraph 26, makes clear that consent is an entirely subjective notion:

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd 1997 368 (SCC), [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.

[48] The Court goes on to point out at paragraphs 29 and 30 that:

While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent.

[49] An acceptance of L.L.’s testimony that she did not want to be touched by Mr. Baider is dispositive on the issue of consent. As the Court explains in Ewanchuk at paragraphs 32-34.

In this case, the trial judge accepted the evidence of the complainant that she did not consent. That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent. As a result, he disregarded his previous finding that all the accused's sexual touching was unwanted. Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.

As previously mentioned, the trial judge accepted the complainant's testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as "implied consent". This conclusion was an error. See D. Stuart, Annotation on R. v. Ewanchuk (1998), 13 C.R. (5th) 330, where the author points out that consent is a matter of the state of mind of the complainant while belief in consent is, subject to s. 273.2 of the Code, a matter of the state of mind of the accused and may raise the defence of honest but mistaken belief in consent.

The finding that the complainant did not want or consent to the sexual touching cannot co-exist with a finding that reasonable doubt exists on the question of consent. The trial judge's acceptance of the complainant's testimony regarding her own state of mind was the end of the matter on this point.

[50] Notwithstanding the possibility that L.L. said “ok” when told by Mr. Baider that he was going to search her, I nonetheless believe her testimony that she did not want to be touched by Mr. Baider. If she did say “ok”, I see that as acquiescence to what she perceived as inevitable.

[51] I am convinced beyond a reasonable doubt that L.L. did not consent to the search.

(e) If L.L. did not consent to the search, has the Crown proven that Mr. Baider knew L.L. was not consenting?

[52] In a prosecution for sexual assault or simple assault the Crown must prove beyond a reasonable doubt that the accused knew of, or was wilfully blind or reckless as to, the complainant's non-consent. R. v. H.W., 2022 ONCA 15 at para. 11; R. v. Morrison, 2019 SCC 15.

[53] L.L.’s current recollection is that she said nothing when Mr. Baider said he was going to search her. Yet, she admitted that she might have said “ok” prior to the search. That this is a real possibility, and not just a philosophical one is supported by her evidence that if Mr. Baider had asked, she might well have affirmatively consented to the search.

[54] Mr. Seyoum’s testimony is unhelpful on this issue. He testified that he heard nothing said by either party. I find as a fact, accepting L.L.’s testimony on this point, that Mr. Baider did announce his intention to search L.L. Mr. Seyoum’s failure to hear that renders his failure to hear L.L.’s response, if any, of no evidentiary significance.

[55] In my opinion, the realistic and reasonable possibility that L.L. said “ok” raises the realistic and reasonable possibility that Mr. Baider did not know that L.L. was not consenting.

[56] I see no evidence to support a conclusion that Mr. Baider was either reckless or wilfully blind as concerns L.L.’s consent.

D. CONCLUSION

[57] The Crown has failed to prove that Mr. Baider knew L.L. was not consenting. The charge must be dismissed.

[58] Had the Crown proved that Mr. Baider had knowingly touched L.L. without her consent, I would not have applied the de minimis rule. Although the touching was brief, and entirely on L.L.’s clothing, in all the circumstances, the invasion of L.L.’s privacy was significant, as evidenced in part by the seriousness of her reaction. Indeed, in my opinion, Mr. Baider’s search of L.L., after she had carefully looked through her own clothing, was rude and uncalled for.

Released on April 12, 2022 Justice Russell Silverstein