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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Rotter, 2023 ONCJ 168

DATE: 2023 04 14

COURT FILE No.: Brampton 19 – S0437

BETWEEN:

HIS MAJESTY THE KING

— AND —

Adam Rotter

Before Justice David A. Harris

Heard on February 13, 14 and 15, 2023

Reasons for Judgment released on April 14, 2023

Julia Bellehumeur.............................................................................. counsel for the Crown

Robert Jagielski..................................................... counsel for the accused Adam Rotter

D.A. HARRIS J.:

INTRODUCTION

[1] Adam Rotter has been charged with sexually assaulting DL at the City of Mississauga between January 1, 2017 and November 26, 2020.

[2] Mr. Rotter waived any limitation period issues and Crown counsel elected to proceed summarily. Mr. Adam pled not guilty and the trial began.

[3] Date, time, jurisdiction and identity were all admitted at the outset of the trial. In addition, it was conceded that a statement made by Mr. Rotter was made voluntarily for the purpose of cross-examining him.

[4] The Crown called DL and her daughter CL as witnesses.

[5] Mr. Rotter testified in his own defence. He also called MR.

[6] DL testified that shortly after she began working for Mr. Rotter in June 2017, he called her into his office. The zipper on his trousers was down. His penis was out. He asked her to kiss him and touch him. When she declined, he grabbed her hand. She left his office without kissing him or touching him.

[7] She also testified that he touched her breasts on a number of occasions throughout the entire time that she worked for him. He did this despite her telling him not to.

[8] Finally, she testified that there were occasions when she performed oral sex on him or touched him sexually. She only did this because she feared that he would fire her if she did not comply.

[9] Any one of the above allegations would constitute a sexual assault if proven.

[10] Mr. Rotter denied all of these allegations.

[11] Accordingly, the principles in R. v. W (D)[^1] are applicable.

[12] If I believe Mr. Rotter’s evidence, I must find him not guilty.

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

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

[15] In determining this, I must keep in mind that Mr. Rotter, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".[^2]

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

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.[^3]

[17] I did not believe Mr. Rotter.

[18] I was however left with a reasonable doubt as to what happened in this case.

[19] My reasons for this are as follows.

[20] The case against Mr. Rotter depends on my assessment of his evidence and that of the other witnesses.

[21] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence[^4]. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.[^5]

[22] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record.[^6] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented"[^7].

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

[24] Crown counsel pointed out inconsistencies in Mr. Rotter’s evidence. Counsel for Mr. Rotter pointed out inconsistencies in DL’s evidence.

[25] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.[^8]

[26] I accept that there were significant inconsistencies in the evidence of both DL and Mr. Rotter.

[27] For example, I found it difficult to follow the evidence of either of them with respect to how and when Mr. Rotter fired DL. For the most part, they disagreed with each other, but the evidence of both of them was also internally inconsistent.

[28] The most significant inconsistency in the evidence of Mr. Rotter is in his explanation for why he fired DL.

[29] During his examination-in-chief he stated that business was bad and that he had to let one or two receptionists go for financial reasons. DL had less seniority than the women he kept on.

[30] During cross-examination, he repeated this, but then added that “and she was going into the rooms and giving massages to clients”.

[31] That could have led to her being fined and to him being fined and possibly him losing his licence.

[32] But he also said that he wanted to give her some work and only did not do so because the other two receptionists would not agree to give up any shifts for DL.

[33] He also said that DL had told him that she would stop going into the rooms. But he also said that she had not in fact stopped doing this.

[34] He kept going round and round on this, apparently incapable of understanding that it might not make sense.

[35] For me, there was no question that this did not make sense.

[36] If DL was doing illegal things that jeopardized the entire business, that fact alone should have been more than enough reason to fire her. It would not be an “in addition” reason.

[37] Further, if she was doing those things, it would make no sense for Mr. Rotter to allow her to work any more shifts.

[38] If DL had stopped giving massages to clients, as she supposedly told him, then her earlier behaviour should not have been a factor in the decision to fire her.

[39] The reasons for letting her go that he put forth during his examination-in-chief made perfect sense but his comments during cross-examination left me seriously questioning his credibility.

[40] Crown counsel argued that Mr. Rotter’s evidence was self-serving. He was evasive in his testimony and minimized things.

[41] I have difficulty with the argument that I should disbelieve Mr. Rotter because his evidence was self-serving.

[42] The Ontario Court of Appeal has made it clear that an accused’s interest in being acquitted may be considered as one factor when weighing his testimony. However it is impermissible to assume that he will lie to secure his acquittal. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused.[^9]

[43] I give more weight to her suggestion that he was evasive. He repeatedly stated “I do not understand” or asked Crown counsel “what do you mean by that?” I note that he was speaking with the assistance of an interpreter and that many questions were multi-part and / or involved legal jargon. So it is possible that he did not understand some things. Even so I considered him to be frequently nonresponsive and overall a problematic witness for the defence.

[44] On the other hand, there were also significant problems with the evidence of DL.

[45] I will start with inconsistencies.

[46] The first inconsistency in her evidence can be found in her testimony about acts of oral sex.

[47] She testified that oral sex definitely took place twice.

[48] She testified that the first time it happened was in 2018 for sure. She had been working for Mr. Rotter for more than a year.

[49] However, in her statement to the police, she told them that she did not remember when this happened, maybe during the summer of 2017.

[50] She then testified about what she said was the second time that she performed oral sex on Mr. Rotter. However, this testimony did not include any description of an act of any oral sex.

[51] She said that it happened during a night shift. Mr. Rotter was sitting in the reception area. Two attendants were present. They were pretending that they did not see anything happening. He gestured with his head for her to sit beside him. She did. He covered himself with a blanket. He took her hand and asked her to touch his stomach but his pants were open and his penis was out and he put her hand on his penis. This occurred shortly before he told her he had to let her go.

[52] This is inconsistent with her telling the police that she “was giving a bj”. She did not tell the police that he grabbed her hand and put it on him.

[53] She did not however adopt that statement to the police during her testimony in court. She stuck to the above description of what happened “the second time”.

[54] There is no issue that DL understood what oral sex involves. During re-examination, she stated that when she referred to oral sex she meant taking his penis in her mouth.

[55] Also during re-examination, she said oral sex occurred for sure twice.

[56] However, throughout her examination-in-chief, cross-examination and re-examination, she never provided any information as to when or where the second act of oral sex occurred or any description of what happened.

[57] I also have problem with her unsupported statement that the two attendants present throughout this second incident were pretending that they did not see anything happening. This was self-serving conjecture on her part. I heard no evidence from any source that could support this.

[58] Other inconsistencies in DL’s evidence include the following.

[59] DL also testified that all of the girls had to perform sexual favours for Mr. Rotter in order to keep their jobs. They told DL this.

[60] BR however testified the attendants did not have to perform sex for him. BR certainly did not perform sex for him. None of the attendants ever complained in her presence of having to do this and BR never saw anything of this sort happen.

[61] BR further testified that there was no reason why the attendants would feel a need to perform sexual favours for Mr. Rotter. He was not the person responsible for assigning their shifts. In addition, the demand for attendants in these erotic massage parlours exceeded the number of women willing to work there. I note here that these comments applied only to the attendants and not to the receptionists.

[62] DL testified that she sometimes went into the client rooms but only to bring supplies. Mr. Rotter never told her that she should not go in the rooms.

[63] BR testified that Mr. Rotter did tell DL not to go in rooms. BR believed that DL stopped going into the rooms after that.

[64] I found BR to be a credible and reliable witness.

[65] DL also testified that she spoke to her daughter and told her daughter that Mr. Rotter had touched her. In her statement to police she said that she told her daughter that he did not touch her. When confronted with this inconsistency during cross-examination, she testified that her statement to the police was a mistake. She had in fact told her daughter that he was touching her but did not tell her any details.

[66] The daughter, CL testified that her mother told her that she did not feel comfortable. Mr. Rotter would ask for sexual favours and try to touch her breasts and DL would move his arm away. CL did not testify that her mother ever told her that Mr. Rotter had ever succeeded in touching her.

[67] A further inconsistency can be found in the fact that DL recommended an acquaintance to work as a cleaning lady for Mr. Rotter at a time that DL considered him to be a beast.

[68] When cross-examined on this, she responded that despite her seeing him as a beast, she thought that the lady would be safe. DL provided no explanation for thinking this. In fact she provided another inconsistent explanation stating that the lady was not a little girl. She was 45 or 47 years old. She could decide for herself. Finally, she characterized the lady as not a close friend but just a friend that she knew.

[69] None of these responses really answered the question and I found them to be inconsistent with each other.

[70] Counsel for Mr. Rotter also argued that DL exaggerated things in her evidence at times.

[71] Further, she shifted her evidence when confronted with inconsistencies.

[72] I agree with both of these observations.

[73] Taking all of the above into account, DL’s evidence failed to satisfy me beyond a reasonable doubt about what happened here.

[74] I reached that conclusion after rejecting several other arguments that were advanced by Counsel for Mr. Rotter.

[75] He argued that DL had a motive to fabricate her accusations, suggesting that she made her accusations against Mr. Rotter as retaliation for him firing her.

[76] The problem with this argument would be the fact that she complained to her daughter before she was fired.

[77] She may have been motivated to go to the police after being fired, but her initial complaint about Mr. Rotter’s behaviour preceded that.

[78] Crown counsel argued the opposite, that DL had no motive to fabricate the allegations against Mr. Rotter.

[79] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process.[^10] It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness’ evidence in the light of all of the other evidence[^11]. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.[^12]

[80] Counsel for Mr. Rotter also argued that I should take into account certain things that Crown counsel rightly argued fall into the category of identified myths and stereotypes.

[81] These include the following:

(1) DL did not call out to others when she was allegedly being assaulted;

(2) She did not discontinue her relationship with Mr. Rotter or attempt to avoid him at work;

(3) She did not complain to anyone about her abuse for a very long time;

(4) She failed to exhibit any signs of trauma;

[82] I did not include any of these as factors in my assessment of her credibility.

[83] With respect to the argument that she did not discontinue her relationship with Mr. Rotter, counsel specifically argued that her repeated explanation that she put up with him sexually abusing her because she needed the money did not ring true. She would not have put up with the alleged sexual abuse for $15 per hour or minimum wage.

[84] I am mindful of my comments above about myths and stereotypes.

[85] I note as well however certain fallacies in counsel’s argument. I take judicial notice of the fact that the minimum wage was not $15 per hour in 2017. Effective October 1, 2017 it was increased to $11.60 per hour. She was being paid $3.40 more than that.

[86] Further, she was being paid in a way that would have made it easy for her to not declare it on a tax return. She was never asked about that.

[87] Finally, there was evidence that she received tips of $20 or $40 from the attendants. I was not told how often this happened.

[88] All things considered, her income from working for Mr. Rotter cannot be categorized as insignificant.

[89] Finally, counsel for Mr. Rotter argued that I should take into account the fact that DL was convicted for impaired driving in 2010.

[90] The Supreme Court of Canada in R. v. Corbett, stated that

The can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury might take into account in assessing credibility.[^13]

[91] The Supreme Court included the reasons of Martin J.A. in R. v. Brown which read as follows:

The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness. Obviously, convictions for offences involving dishonesty or false statements have a greater bearing on the question whether a witness is or is not likely to be truthful, than convictions for offences such as dangerous driving or assault. The probative value of prior convictions with respect to the personal trustworthiness of the witness also varies according to the number of prior convictions and their proximity or remoteness to the time when the witness gives evidence. A jury might well be justified in concluding that a conviction, even for a serious offence committed many years before, was of little if any value in relation to the credibility of a witness if he had since that time lived an honest life.[^14]

[92] In the circumstances here, I am attaching no weight to DL’s criminal record in assessing her credibility.

[93] As I stated earlier, taking all of the above into account, I did not believe Mr. Rotter.

[94] However, I was not satisfied that the Crown had proven beyond a reasonable doubt that Mr. Rotter sexually assaulted DL.

[95] Accordingly, I find him not guilty of that offence.

Released: April 14, 2023

Signed: Justice D.A. Harris

[^1]: R. v. W. (D), [1991] S.C.J. No. 26 (S.C.C.). [^2]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242. [^3]: R. v Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13 [^4]: R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.) per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Ont. C.A.) per Watt J.A. at para. 41; R. v. Slatter, 2019 ONCA 807, [2019] O.J. No. 5073 Ont. C.A. per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), pp. 32 to 33. [^5]: R. v. J.J.R.D., [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26. [^6]: R. v. Norman, [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G., [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick, [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para 66. [^7]: R. v. Stewart, supra at para. 27; R. v. M.G., [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14. [^8]: R. v. R.W.B., [1993] B.C.J. No. 758 B.C.C.A.) per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (Ont. C.A.) at paras. 12 to 13. [^9]: R. v. B. (L.), [1993] O.J. No. 1245 (Ont. C.A.) at para. 7; R. v. Murray, [1997] O.J. No. 1397 (Ont. C.A.) at para. 12; R. v. M.J., [2002] O.J. No. 1211 (Ont. C.A.) at para. 9; R. v. D.T.G., 2011 ONCA 40, [2011] O.J. No. 155 (Ont. C.A.). [^10]: R. v. Jackson, [1995] O.J. No. 2471 (Ont. C.A.) at para. 5. [^11]: R. v. R.W.B., supra at para. 28; R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 (Ont. C.A.) per Simmons J.A. at para 44; R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210 (Ont. C.A.) per Cronk J.A. at para 107. [^12]: R. v. Czibulka, [2004] O.J. No. 3723 (Ont. C.A.) per Rosenberg J.A. at para. 44; R. v. L.L., supra at para 44; R. v. O.M., supra at para 107. [^13]: R. v. Corbett, [1988] 1 S.C.R. 670 at para. 21. [^14]: R. v. Brown (1978), 38 C.C.C. (2d) 339 (Ont. C.A.) per Martin J.A., at p. 342 quoted in R. v. Corbett, supra at para. 113.