Court File and Parties

Date: August 15, 2022 Ontario Court of Justice

Between: HER MAJESTY THE QUEEN — AND — M.Z.

Before: Justice F. Javed

Heard: July 28, 2022 Reasons for Judgment: August 15, 2022

Counsel: H. Cook, counsel for the Crown I. Vilkhov, counsel for Mr. Z.

F. Javed J.: -

A. Introduction

[1] M.Z. is charged with sexually assaulting A.S. on October 3, 2019, contrary to s.271 of the Criminal Code.

[2] The Crown proceeded by summary conviction.

[3] M.Z. is a registered Physiotherapist. He worked at a clinic with A.S. who was employed as an office administrator/receptionist. She claims M.Z. sexually assaulted her by touching her bare breasts without her permission during a neck massage and after he forced her to massage his neck and back.

[4] M.Z. testified in his defence and admits giving A.S. a neck massage but denied massaging her chest or touching any part of her breasts. He says the specific interaction was in context of prior mutual and consensual massaging which was brief and non-sexual.

[5] The evidence at trial included the conflicting accounts of M.Z. and A.S. No other witnesses testified. A.S. testified via CCTV with a support person and was cross-examined virtually on the Zoom platform. M.Z. testified virtually on consent of all parties. At the start of the trial, the defence sought an adjournment because the Crown provided new disclosure on the eve of trial, namely, utterances of A.S. gathered during a preparation interview with the Crown the day before the trial was scheduled to commence. This generated a two-page document which the defence argued substantially changed the defence theory. Ultimately, the defence was granted an overnight adjournment to prepare for cross-examination and did not seek a longer adjournment or other remedies.

[6] The issue in this case involves a credibility and reliability assessment.

[7] I will set out the applicable legal principles that must guide my analysis. I will then turn to my factual findings and discussion.

The Law

[8] A sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated". [1] The Crown must prove performance of the act (actus reus) and a corresponding mental component (mens rea) beyond a reasonable doubt.

[9] The actus reus of sexual assault is established by proof of three elements: (i) voluntary touching (ii) of a sexual nature and (iii) done without the consent of the complainant. [2] The touching element is determined objectively and can be established by any direct or indirect application of force to another person. [3]

[10] Proof of absence of consent is determined subjectively by reference to A.S.’ state of mind toward the touching at the time it occurred. I must ask: Did A.S., in her mind, want the alleged touching of her breasts to take place? [4]

[11] M.Z.’s intention or mens rea would be established by proof of (i) an intention to touch and (ii) knowing of, or being reckless of or wilfully blind to, lack of consent. [5] Sexual assault is a crime of general, not specific intent, thus a person’s intention in committing the act is usually inferred from the performance of the act.

[12] A criminal trial is not a contest about who was a better witness. Instead, in a criminal trial, the prosecutor (the Crown) bears the burden of proving M.Z.’s guilt on the criminal law standard which is proof beyond a reasonable doubt. M.Z. is presumed to be innocent. Proof of probable guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. 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 that it does to a balance of probabilities. [6] This legal standard is a heavy one designed to make sure innocent people don’t get convicted of crimes.

[13] The framework for assessing credibility arises from the Supreme Court’s test in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). It has three distinct areas or steps of inquiry. I am directed to follow this path of reasoning.

(i) First, if I believe the denial of M.Z., I must acquit him and dismiss the charge;

(ii) Second, if I do not believe the testimony of M.Z. but am left in reasonable doubt by it, I must acquit and dismiss the charge; and

(iii) Third, even if I am not left in doubt by the evidence of M.Z., I must ask myself whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt about of the guilt of M.Z.?

[14] In considering the first two steps of the W. (D.) analysis, the evidence M.Z. must be considered in the context of the evidence as a whole, including A.S.’ evidence. In other words, the assessment is not simply whether M.Z.’s evidence standing alone and without context is believed or leaves a reasonable doubt. [7]

[15] The second step of the W. (D.) analysis emphasizes the point that credibility assessments in a criminal case are not dichotomous. In other words, there is a third alternative between complete acceptance and complete rejection of a defendant's evidence. [8] If I am unsure about what happened based on the conflicting accounts, the law says M.Z. should be acquitted. See R. v. J.H.S.. [9]

B. The Positions of the Parties

[16] The defence argues M.Z. should be acquitted on steps 1 and /or 2 of the W.(D). analysis because his evidence that he did not touch the breasts of A.S. was forthright, detailed and honest. The defence argues M.Z. was not shaken in cross-examination when challenged by the Crown and his denial makes sense. Alternatively, if the court rejects his evidence, the defence argues there were several problems with the account of A.S. Apart from her demeanor which presented a shy and emotional witness, her testimony did not make sense. The defence points to two glaring omissions from her police statement when the events would have been fresh in her mind, including: (i) she spoke to her boyfriend before reporting the matter to the police through her parents and (ii) she did not tell the police that M.Z. told her to unbutton the top button of her blouse before touching her. The defence says on either steps of the W.(D.) analysis M.Z. should be found not guilty.

[17] The Crown argues M.Z.’s evidence should be rejected largely because the evidence of A.S. that she was sexually assaulted overwhelms his denial and establishes proof of the offence. The Crown relies on the legal principle explained by the Ontario Court of Appeal in R. v. J.J.R.D. which held: “an outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” [10] In conducting this analysis, the law instructs me that the question would not be whether the evidence of A.S. is accepted as credible but whether the allegations are proved beyond a reasonable doubt. It would be wrong to simply reject M.Z.’s evidence solely by accepting A.S.’ evidence. [11] At the same time, an acquittal does not follow simply because there are no obvious problems in an accused’s evidence. [12]

[18] I will set out the conflicting positions of the parties, then turn to my credibility evaluation.

C. The Evidence

The Parties

[19] M.Z. is 34 years old. He is a permanent resident having immigrated to Canada in 2012. He is employed as a Registered Physiotherapist. He became accredited in January 2019. In 2010 he attended university in India and graduated from this program which took 4.5 years. He started to work as a Physiotherapist in India for about 1.5 years before moving to Canada. After arriving on a student visa, he completed a program in Health and Fitness from Humber College. After getting a work permit, he studied for his Physiotherapy license and eventually became licensed by passing two difficult exams in 2017 and 2019.

[20] In early January 2019, M.Z. began his Physiotherapy employment in Ajax. He started as a resident under the supervision of a Physiotherapist. The Ajax employment lasted for 1.5 months. He took a break to find full time employment, and in the interim worked for 1 month in a Belleville clinic to upgrade his skills. In April 2019, he started to work at the [… “ X-Clinic ”] in Oshawa which is the clinic where the alleged incident occurred. At the time, he was living in Etobicoke, Ontario. The commute to work was about 1 hour each way.

[21] M.Z. testified the position started as part-time but quickly became almost full-time within 1 month. He explained when he started there were 2-3 receptionists or office administrators. The full-time employee was J. He recalled a C. as well. A.S. started around August 2019. In total there were 3 Physiotherapists and 2-3 massage therapists. X-Clinic was owned by Mr. S.N. who was also his direct supervisor.

[22] M.Z. testified when a patient attends at the clinic for therapy or treatment, both the provider and the patient have to review and sign consent forms. On occasion this happens before the appointment but sometimes during. A form is filled out requiring him to document answers from the patient. Without securing the patient’s consent, he cannot perform his assessment. On occasion, and depending on the circumstances, he would secure verbal consent and document this. After he completes a treatment with a patient, he would tell the receptionist to book a future appointment. Further, if he needed help with a patient, he would ask the receptionist for help. For example, the receptionist would retrieve things for him such as a heat pack but nothing more as he was responsible for treatments.

[23] M.Z. said it’s very unlikely he would have to touch the chest area of a patient during any treatment but sometimes he would touch the back of the client, but in these circumstances, he would obtain verbal consent if he didn’t get written consent. Indeed, if he’s touching any “sensitive areas” of the body, he would obtain verbal consent and would documents this in his notes.

[24] M.Z. said A.S. was a co-worker and his relationship with all his co-workers, was purely professional as he was relatively new to X-Clinic and lived far away. He didn’t know his co-workers too well as he was usually in a hurry to get home to his wife given the long commute. He testified he treated A.S. like the other receptionists and only asked for nominal help and nothing of significance. Further, he explained after his treatment was finished, he would try to complete his paperwork in the clinic, but sometimes left it for the following morning if it was a long day. M.Z. explained his work shift often meant he often worked with more than 1 receptionist who worked varying hours. After he finished his paperwork, the notes would be placed in the client file. On occasion he would do the filing himself but mostly this would be the receptionist’s task.

[25] A.S. is 26 years old. She is in the process of completing a program in Occupational Therapy. She graduated from University of Toronto in Life Sciences. In 2019, she resided with her family and was employed as the office administrator or receptionist at the X-Clinic, which is located in Oshawa, in the Durham Region. She began working at X-Clinic at the end of August 2019. Her role included answering the phone, booking appointments, responding to emails, cleaning up at the end of the day and doing the laundry. Her hours of employment were usually 4-8pm usually two times per week on Wednesdays and Thursdays but on occasion she would work more often.

[26] A.S. explained she didn’t have any special qualifications for the job thus could not perform treatments. She was hoping to get her foot in the door in her chosen industry. She had a deskspace at the front of the clinic. This was outfitted with a computer and printer. The patient files were located behind the desk in a cabinet. While on shift, she there could be 3-4 health care providers working at the same time including Physiotherapists and Massage Therapists. She explained X-Clinic had 3 treatment rooms behind her workspace. They had beds which could be raised and lowered and curtains for privacy. There were also 2 treatment beds in an open area, also with curtains. The treatment rooms included a stool and computer for the provider. A.S. said typically an appointment would last about 30 minutes to 1 hour, but this varied. After the treatment, the health care providers would give the receptionist their notes for filing and book future appointments.

[27] I now turn to the incident in question. The alleged touching of the breasts was preceded with some other mutual massaging which A.S. says she only did because she felt forced. M.Z. says the mutual massaging was consensual and, there was nothing sexual about it as they were both trying to help each other relieve pain and discomfort. These preceding massages do not make up the sexual assault which relates to the touching of the breasts, specifically, both nipples on the bare breast. As a matter of law, if the breast touching is proven beyond a reasonable doubt, it would amount to a sexual assault because breasts and nipples are intimate parts of the body and would violate a woman’s sexual integrity. M.Z. denied touching her breasts and did not argue consent or mistaken belief in communicated consent.

i. The laser massage

[28] On October 3, 2019, M.Z. began his shift at 12:30 pm. He would have had 10-15 clients scheduled for appointments but couldn’t be sure. He explained it was usual to have more evening appointments to accommodate work schedules of patients. The shift began with Joanne as the receptionist and A.S. took over in the afternoon. The other health care professionals who were working would have left around 3-4 pm. The final massage therapist left around 5-6 pm.

[29] M.Z. testified it was a usual day and he would have said hello to A.S.. Around 4-5 pm he started to feel back pain and was using a small massage ball against the wall to release pressure. This happened outside treatment room 3. A.S. approached him and asked: Is there anything I can help you with? He explained he had back pain and asked if she was okay in performing a laser treatment on his back. He testified she paused at first suggesting she “was probably reluctant” but when he told her all she had to do was hold the laser and pull the trigger, she agreed.

[30] The parties walked into a treatment room and he set up the machine. He asked her if it’s okay if he lifted his shirt and whether she could hold the machine. She agreed. He lifted his shirt and placed the machine on the left lower side of his thoracic muscle. He pointed his finger to the area, and A.S. pointed the laser to the area which also required some manual application which involved him helping her move the laser around the back. The treatment lasted about 1.5 minutes. Apart from his instructions there was no other conversation. After the treatment was over, he continued with his work, and she returned to her workspace.

[31] A.S. had a different recollection. She testified M.Z. was in between clients and was on a break around 5-5:30 pm and he attended at the front and told her his back was sore. She testified he asked her if she could help him with treatment and directed her to treatment room 1. She agreed because she would normally agree to what a Physiotherapist asked of her. She denied that he was self-massaging and she offered to help him. They walked into the room and M.Z. lifted up his shirt and she placed the laser on his lower back for about 2 minutes according to his instructions. It was quiet and the parties did not speak. M.Z. thanked her and said if “you need any treatments he would give them to her for free”. A.S. returned to her workspace.

ii. The back massages

[32] After the laser massage, there is no dispute that A.S. gave M.Z. a back massage with her elbow but the parties disagree about when this happened relative to the incident in question. M.Z. testified after the laser massage, A.S. asked him if she could give him a massage. He thought she was joking and asked: Seriously? She replied: “Yes I’ve given massages to my father all the time so I can give you a massage with my elbow”. He was surprised but took her up on her offer and laid down on his stomach. He claimed his shirt was on. A.S. began to massage his back with her elbow. His back was still hurting so he was shifting around during the massage. He guided her elbow during the massage which lasted no more than 1 minute. M.Z. said it wasn’t helping him, so he stopped by saying “that’s ok”. A.S. stopped and left the treatment room. He stayed in the room and waited for his last patient who was scheduled to come later in the evening. He was probably doing some paperwork.

[33] A.S. testified the elbow massage of the back happened after he saw his last patient at 7pm who came earlier than scheduled. M.Z. continued to complain his back and neck were hurting. A.S. testified she jokingly said: “do you want me to use my elbow to massage you?”. M.Z. agreed which caught her off-guard. She was surprised and he repeated “yes”. M.Z. went to the first treatment room in the open area and laid down on the bed on his stomach. He kept his clothes on. He directed her where to place her elbow and she agreed. There wasn’t much communication except him directing her but things were “light-hearted”. She could not recall if she had to raise the bed at any point. It lasted for about 2-3 minutes. She could not recall how it ended but did recall him saying thank you.

iii. M.Z.’s neck massage

[34] A.S. testified after the back massage, M.Z. asked her: “do you have anything I can help you with”. A.S. replied: No. He told her that when she was sitting on her desk, the computer screen was too low and asked if her neck was tense. She replied: No. He touched the back of her neck and pointed to some tension resulting in her saying “oh okay” but she testified she didn’t feel tense. This resulted in a brief neck assessment. He then asked her to feel the back of his neck. She agreed and touched the back of his neck between the shoulders. She felt his neck and felt tension and was asked to help him. She reluctantly agreed.

[35] A.S. said the parties were in the first treatment room and he sat on the bed. M.Z. did not take off his shirt. She stood behind him and using her right elbow began to massage his neck with her elbow. He began to guide her elbow with his hands. A.S. said she began to feel weird and uncomfortable but didn’t mind trying to help him. The elbow massage on the neck lasted a few minutes. M.Z. thanked her and then directed her to sit on the bed and stood behind her. She recalled wearing black dress pants with a white collared shirt with a sweater over the shirt. M.Z. began to massage her neck under the collar. She felt uncomfortable as she didn’t ask for the massage. She wanted to tell him to stop but thought he was helping her. She was hoping to use her body language to convey she didn’t want the massage, but it didn’t work. She leaned forward and started to act skirmish hoping he would stop but that didn’t stop him. After 2-3 minutes he stopped and asked How do you feel. She told him it didn’t feel any different. She could not recall if he had given her ergonomic advice in the past.

[36] M.Z. admitted diagnosing her neck pain, but this was not after the elbow massage to his back. Instead, it was towards the end of his shift. He denied A.S. performed a neck massage on him with her elbow.

iv. A.S.’ neck massage and alleged touching of breasts

[37] A.S. testified she did not think the two massages were consensual, but she agreed as she wanted to help him. After performing a neck massage on M.Z., she returned to her workspace and began to clean up by doing laundry as it was nearing the end of the day at 7pm. M.Z. remained in the clinic after his patient left which was a bit uncomfortable as she’s normally on her own. It appeared he was not in a rush to leave. M.Z. was using a ball and massaging himself against a wall between two treatment rooms. She was in the same area but on the opposite side of the clinic. She felt weird so she tried to make conversation by naming the muscle he was massaging. She uttered “trapezoid muscle” and M.Z. began to test her by asking what other muscles she knew. She tried to name some including the “pec major” and “pec minor”. He asked her where it’s located. She pointed to her upper shoulder area near her collarbone. M.Z. said that was wrong and pointed out she had rounded shoulders, which is common.

[38] At this point, he directed her to sit down and “he would help her”. A.S. thought this was weird, but it sounded like he was going to help her with a treatment. She sat down on the edge of the treatment bed in the first room in the open area of the clinic. The parties were alone. M.Z. was standing to her side or back and began to massage her shoulders and chest by placing his hand on her shirt and placed pressure on her chest below her clavicle. She testified he asked her to unbutton the top button of her shirt ostensibly to gain better access to the chest area. A.S. said she normally keeps the top button unbuttoned but she agreed to unbutton another as she thought he was helping her. M.Z. placed his hand under her shirt. She was wearing a long sleeve knitted sweater on top of the shirt. She could not recall what hand he used but thought it was the right one. M.Z. was moving from one side to the other of her chest. M.Z. was not saying anything except “are you ok” and she said “Yes I’m fine”

[39] A.S. explained M.Z. was putting pressure on the top of her chest for 1-2 minutes and began to go lower. He slowly began to touch her nipples under her bra with his fingertips and put “a different kind of pressure which was very light”. He switched between the two nipples. She could not recall how many times he touched her nipples, but it was more than once. It was very quiet, and she felt uncomfortable and confused how this was helping with her shoulder. She was staring at the wall and trying to process the event. After 20 seconds, he asked her if she wanted him to continue. She said No and he stopped. She testified this was the first time he asked her this question. A.S. added she felt very uncomfortable and never explained what the massage would be like. She was extremely confused how the nipple touching would assist with her shoulders.

[40] M.Z. admitted there was an interaction involving her neck but denied touching her breasts. He recalled having an interaction with A.S. where he was self-massaging his back and unexpectedly, she uttered “trapezies muscle”. He asked how she knew the name and she responded she learned it in high school. He made casual conversation and she replied she knew “pec major and pec minor”. He corrected her and recalled giving her ergonomic advice about how to be seated at her workstation. He told her she had round shoulders and performed a shoulder retraction exercise on his own which he explained to her would help with her posture.

[41] Further, he recalled his last patient arrived earlier than scheduled. The patient complained of neck pain due to working from home and in the presence of A.S., he repeated the same advice he gave to her about ergonomics and posture. After he finished the treatment on the client, he was completing his paperwork and spoke with A.S. who asked him for help complaining she had neck pain. He asked her if she wanted him to assess her neck as she had previously helped him with his back and she agreed. He testified he didn’t expect performing a long treatment as it was the end of the day and he needed to go home. He told her to sit on a stool in the main area. He stood behind her and applied pressure on the neck to see if there was any stiffness or tenderness. He used one hand on her shoulder to stabilize the area and used his elbow to apply pressure. He moved both muscles around during the treatment but only on the neck and shoulder area. He asked how she felt, and she said Good.

[42] During the treatment he asked if she was okay and she replied Yes. He explained it was common for him to obtain the patient’s verbal consent which is what he did on this occasion. M.Z. didn’t document the interaction which in his mind was a treatment, even though A.S. was not technically his patient. Therefore, he did not have her sign a consent form. Nor did he do a full subjective assessment of her background. In his mind, he was simply helping a co-worker. He acknowledged this was likely a mistake on his part.

[43] M.Z. denied applying any pressure or massaging her chest or clavicle area. He denied touching her breasts or nipples under or over her clothes. He testified his hands only came on her shoulders but nowhere near her breasts or chest. He also denied asking her to unbutton her shirt as it was unnecessary for the neck massage. Around 7-715 pm, he finished his paperwork and left. He denied hugging her goodbye. He was in a bit of a rush as he had dinner plans with his wife at a restaurant.

D. Findings and Analysis

[44] In conducting a credibility evaluation, the law says I must follow the W. (D.) instruction which permits a court to arrive at three general states of belief to ensure the correct standard of proof is applied in criminal cases. In two witness cases, where one witness says a crime was committed and the other denies it, this becomes challenging for courts. In R. v. C.L. [13], the Ontario Court of Appeal reminded that the W. (D.) direction is intended to explain “what reasonable doubt means in the context of evaluating conflicting testimonial accounts:” at para. 25. In J.J.R.D. the Court of Appeal endorsed the proposition that a conviction can be arrived at even where the exculpatory testimony (often from the accused’s testimony) has no obvious flaws if the Crown mounts a strong prosecution: R. v. O.M. [14] In C.L., the Court noted that if a judge finds the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt, guilt can follow: at para. 30. The Crown argues this prosecution is a J.J.R.D. case because a considered and reasoned acceptance of A.S.’ evidence is an explanation to reject the evidence of M.Z. and find him guilty.

[45] With respect to the Crown position, I disagree. There are seven reasons.

[46] First and foremost, it is my view on a careful application of steps 1 and 2 of the W. (D.) analysis, I find there are no obvious flaws in the evidence of M.Z. or stated differently, his denial of sexually touching A.S. has not been undermined. M.Z. gave detailed and careful evidence and was fair in his testimony. For example, he acknowledged he did not follow his professional protocols in doing a full assessment on A.S. to get a full picture about her background. However, he explained he proceeded because he got her verbal consent. I accept this explanation which was acknowledged by A.S. who agreed to some mutual massaging to be helpful. He admitted the lack of written consent and the failure to take notes was likely a mistake on his part. He admitted A.S. appeared a “bit reluctant” to perform a laser treatment on his back but relented after he explained all she had to do was hold the machine and push the trigger. He did not remember exactly how many patients he had on the date in question and exactly what time he performed each function. All of this shows a careful witness who was fair and did not offer answers when he didn’t know them.

[47] Second, M.Z.’s testimony was internally consistent and he was not contradicted on material points. In fact, the accounts of A.S. and M.Z. are the same in several important areas: (i) he was fairly new to the clinic and was not close with his co-workers including the owner, (ii) he admitted asking A.S. to touch his neck while admitting touching her neck (iii) A.S. performed a laser treatment which was brief and non-sexual (iv) A.S. performed an elbow massage on his back which was also brief and non-sexual and (v) the parties exchanged casual but work related or “shop-talk” during their interactions. This includes banter relating to muscles, their locations and causes of muscle discomfort. None of this was nefarious per se. In my view, the events leading up to the disputed act provide important context.

[48] Third, I accept M.Z.’s evidence that A.S. offered to help him with his laser treatment and also offered to perform a back massage with her elbow. I arrive at this finding because it makes very little sense that M.Z., a licensed professional would expect that an untrained office administrator would know how to perform a laser treatment. It is far more sensible that A.S., likely in an effort to be generous and helpful, offered to help a co-worker in distress and he agreed to let her hold the laser machine, because as he said: “she was learning”. That said, it was entirely inappropriate for M.Z. to take her up on her offer to hold the laser machine on his back and then agree to the elbow massage, but inappropriate conduct is not the same as criminal conduct. M.Z. would be expected to be held to a higher standard than an office administrator as he was in a position of authority. He should not have engaged in the mutual massaging even if consensual. Having said this, there was nothing objectively sexual about the first two massages. A.S. did not say her sexual integrity was violated with this touching even if it made her uncomfortable.

[49] It also makes sense that A.S. offered to help with the laser massage because on her own evidence she later offered to help with the elbow massage. She admitted offering to help with her elbow but did so as a joke and explained she was trying to be friendly and playful. As a common-sense proposition, if A.S. was okay with an elbow massage which involves close contact and application of direct force, it is more logical she would be okay holding a laser gun and pulling a trigger which involves less and indirect force. This proposition is not based on myths or stereotypes. It is based on logic and reason which is grounded in the evidence. I accept that M.Z. was also trying to be nice, although he should have known – as the trained professional - what he was doing was not appropriate.

[50] Fourth, I have no reason to reject M.Z.’s evidence that he asked A.S. whether she wanted her neck assessed and she agreed. If she didn’t, presumably that would have ended things. I accept she sat on a stool because it makes sense it would give him the ability to access her neck and shoulder muscles – as opposed to the edge of a bed where it would be more challenging to perform the assessment of those specific muscles.

[51] Fifth, there is no compelling reason to reject M.Z.’s evidence that he assessed her neck by having her touch the back of his neck as well. This arose in the context of mutual discussion about muscle terminology or “shop talk”. It was not purely a professional-patient encounter where there would be less friendly banter. I’m satisfied he touched her neck to demonstrate to her the area of the muscle for educative purposes, not for some nefarious purpose, such as testing her desire to touch him.

[52] Sixth, I accept his evidence that he only touched her neck on the skin and her shoulders over her clothing which accords with the clothing A.S. admitted she was wearing. She testified she was wearing a collared shirt with a sweater on top of the shirt. There is no evidence that any clothing, including the sweater, was removed or any request was made of same. There is very little evidence about the exact nature of her sweater and how it would have factored into his ability to access her breasts from the top. For example, I do not know if the sweater was loose fitting or tight fitting which speaks to the plausibility of the alleged act because presumably it would be easier to insert one’s hands on the chest from the top of a loose sweater over a buttoned shirt as opposed to a tight one. This too is based on common sense and reason, not stereotypes.

[53] Seventh, I believe M.Z. that he did not hug her goodbye or that he gently tapped her face in a playful manner while saying goodbye. I accept he was trying to be helpful with the mutual massaging but there is nothing helpful about hugging a co-worker or a gently tapping a co-worker you barely know. I find this did not happen. For similar reasons, I cannot be sure he touched her breasts. While M.Z. traversed the proper boundaries of conduct with a co-worker by offering massage treatments, this was done in the context of both co-workers trying to be helpful. It was not criminal conduct and would hardly be enough to constitute professional misconduct. At most it was socially inappropriate conduct and reflected an error in judgment.

[54] In view of the above, the prosecution would fail on steps 1 and 2 of the W. (D.) analysis as there is reasonable doubt. However, the Crown also argued that the court should reject M.Z.’s evidence on the J.J.R.D. analysis. I will address this argument as well.

[55] The J.J.R.D. principle offers an explanation to reject the evidence of M.Z. based on a “reasoned” and “considered” acceptance beyond a reasonable doubt the evidence of A.S.. It is my view the J.J.R.D. principle does not help the Crown in this case. There are three main reasons for this conclusion.

[56] First, the Crown’s main argument in favor of A.S. is her demeanor in the courtroom while testifying. A.S. presented as an emotional witness who broke down crying when asked to describe the events. I agree she was soft-spoken and emotional. The law instructs that a court can consider a witness’s demeanour while testifying when assessing their credibility, but it cannot be used to resolve a credibility dispute especially in a two-witness case. It is one factor, but not a decisive one: R. v. Hemsworth. [15] The reason for this is because one’s demeanour can be affected by factors unrelated to credibility such as gender, culture and individual temperament. In this case, it is one factor in favor of A.S.’s credibility but on its own, it is not a reasoned nor a considered basis to reject M.Z.’s evidence.

[57] Second, A.S. admitted in her cross-examination that she omitted two material things from her police statement which she acknowledged was offered when her memory of the events was better than it was in the courtroom: the first related to her evidence that the first person she disclosed the event to was her boyfriend who became upset and directed her to tell her family. She admitted she only told the police she disclosed the event to her parents who contacted the office manager. She admitted this was a “significant oversight” but explained she didn’t think to mention it until asked by the Crown during the preparation interview two years later. In my view, this omission is not on its own important because the order of events relating to her disclosure means little because a sexual assault complainant is not expected to act a certain way by telling a close partner before a parent. But, in this case it takes on some importance because the defence alleged recent fabrication, including, that she lied about this fact to the police and the Crown to shore up her credibility. In this way, the omission is important because it was open to the Crown to call evidence from her boyfriend or parents to rebut this attack on her credibility. But this never happened. A.S. said she couldn’t recall if the police asked her who she told first. I cannot evaluate this answer as no police evidence was called about the circumstances of the interview. In other words, if the police truly did not ask her the question, the omission might mean little but if they did ask the question, the omission would take on more importance.

[58] In my view, the more important omission related to her evidence that she did not tell the police in her initial statement that M.Z. told her to unbutton her collared shirt. She admitted this was a significant detail because she didn’t realize she left it out and again didn’t think of it until asked by the Crown during their preparation meeting. With respect, I cannot accept this explanation because unlike the boyfriend omission, this is a critical fact which goes to the heart of the criminal allegation. I do not know what questions the police asked her on this topic as this evidence wasn’t called so I cannot evaluate her answer that she left it out, but it would be inconceivable that a trained sexual assault investigator would not have asked her how the touching of the breast took place especially because she alleged the touching was of the bare breast and her nipples. It may be less important if she alleged the touching was above the clothes where the unbuttoning evidence would be less significant. With respect to A.S., this omission is glaring and a considered and reasoned flaw in her testimony.

[59] Third, I have some concerns with the account of A.S. that she went home and in her words: “had to Google it [the incident]” and watch videos of rounded shoulder massages to determine in her mind whether the nipple touching was okay before determining it was not. A.S. is a university graduate with a science degree in life sciences. She is obviously an intelligent young woman who has a bright career as an Occupational Therapist ahead of her given her empathy towards others. It strains credulity to think that a person with her background and intelligence would not immediately understand that if a co-worker touched her nipples, even gently, this would be off-side and wrong unless it was done, for example, during a clinical breast examination which this was not. A.S. testified she froze when it happened, went into a state of shock but then had to Google it later to process if it was acceptable. As a common-sense proposition grounded in the evidence and not an unfounded assumption or myth, there would be no need to Google this kind of conduct which if true, would obviously be wrong. The two omissions work in tandem because A.S. admitted speaking to her boyfriend about 30 minutes after she used the internet to confirm what happened to her was wrong. The sequence of events goes to the defence argument that she had reason to embellish the event based on her boyfriends’ expected displeasure that she engaged in mutual massaging with another man. A.S. denied this was the case, but again, on its own, this answer is hard to evaluate given a reasoned consideration of all the evidence.

E. Conclusion

[60] This is a case where two co-workers crossed appropriate social and possibly professional boundaries in the moment by offering to help each other with mutual massaging. It was non-sexual in nature and in hindsight, shouldn’t have happened, but workplace dynamics aren’t always clearly defined. In the end, all I could be sure of is mutual and consensual massaging of the back and neck and nothing more.

[61] On a proper application of the criminal law standard on steps 1 and 2 of the W. (D.) analysis, there is reasonable doubt about M.Z.’s guilt. Therefore, the sexual assault charge against M.Z. is dismissed.

[62] As a final comment, these reasons do not mean the court found A.S. to give dishonest evidence about what happened to her. Instead, these reasons simply mean the evidence that was presented to the court was not strong enough to meet the prosecution’s high burden of proof in a criminal trial. Neither party should feel they have chosen the wrong profession as that would not be true. However, both parties should exercise more caution going forward.

Dated: August 15, 2022 Signed: Mr. Justice F. Javed

[1] R. v. Chase, [1987] 2 S.C.R. 293, at p. 302 [2] R. v. G.F., 2021 SCC 20 at para. 25 [3] R. v. Barton, 2017 ABCA 216 (varied on other grounds: 2019 SCC 33 at paras. 201 -2016. [4] Barton, supra at para. 89 [5] R v Ewanchuk, [1999] 1 SCR 330 at paras 25 and 42. [6] R. v. Lifchus (1997) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) [7] R. v. Carriere (2001), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.). [8] R. v. Edwards, 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20. [9] 2008 SCC 30. [10] (2006) , 215 C.C.C. (3d) 252 (Ont. C.A), leave to appeal refused, [2007] SCCA No. 69 [11] R. v. Martin, 2017 ONCA 322 [12] R. v. R.A., 2017 ONCA 714 at para. 55, aff’d 2018 SCC 13 [13] 2020 ONCA 258 [14] 2014 ONCA 503 at para. 40 [15] 2016 ONCA 85 at paras. 44-45