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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

DATE: 2023 05 17 COURT FILE No.: Halton Info # 1211 210 1209

B E T W E E N :

HIS MAJESTY THE KING

— AND —

DWAYNE THOMAS

Before: Justice Jennifer Campitelli

Heard on: October 17, 18, 19, 20, 2022 Reasons for Judgment released on: May 17, 2023

Counsel: Michael Godinho, counsel for the Crown Selwyn Pieters, counsel for the accused Dwayne Thomas

CAMPITELLI J.:

[1] Dwayne Thomas faces two counts on the information, which is before the court:

(1) On or about the 5th day of March in the year 2021 at the Town of Milton in the said Region, did commit a sexual assault on J.S. contrary to Section 271 of the Criminal Code of Canada.

(2) On or about the 5th day of March in the year 2021 at the Town of Milton in the said Region, being an official peace officer employed at the Vanier Centre for Women, did commit a breach of trust in connection with the duties of his office, contrary to section 122 of the Criminal Code of Canada.

Factual Background

[2] J.S. alleges that, while an inmate at the Vanier Centre for Women, she was sexually assaulted by Mr. Thomas, while he was working in his capacity as a correctional officer, and while she was under his direct supervision. J.S. alleges that the assault involved vaginal intercourse, which occurred within the confines of a closed shower area. She alleges that Mr. Thomas ejaculated on the shower floor, and that she collected a sample of his ejaculate following the alleged incident using her pants.

[3] Mr. Thomas adamantly denies that he sexually assaulted J.S. on March 5, 2021. It is Mr. Thomas’ position that J.S. was, in fact, the aggressor on the relevant day, lured him into the shower area, and began touching him sexually. Mr. Thomas acknowledges that he eventually allowed J.S. to masturbate him manually to ejaculation and he does not dispute that it was his semen, which was collected by J.S. and analyzed by the authorities. However, it is the position of the defence that any sexual encounter between the parties in the shower area was initiated by J.S., was consensual, and that Mr. Thomas did not commit a breach of trust in connection with his duties as a correctional officer on March 5, 2021.

The Evidence of Sergeant Leslie Quirk

[4] Leslie Quirk testified in a clear and straightforward manner. She is a Sergeant with the Ministry of Community Safety and Corrections. Sgt. Quirk was a credible witness and I find her evidence to be reliable.

[5] Sgt. Quirk testified that she was familiar with both J.S. and Mr. Thomas. It was Sgt. Quirk’s evidence that, on March 5, 2021, she was not aware of J.S. being on any “special handling” protocols or “keep separate” protocols. Therefore, J.S. would have been able to shower at any point she wished when her unit was “unlocked”.

[6] Sgt. Quirk testified that it would be against policy for a correctional officer to enter a shower area while it was being used by an inmate for privacy reasons. The only exceptions provided by this witness related to emergency situations or medical alerts.

[7] It was Sgt. Quirk’s evidence that J.S. first disclosed the allegations to her on March 8, 2021, following an altercation she had with her cell partner. It was at that point in time, that J.S. provided Sgt. Quirk with her pants, which contained Mr. Thomas’ semen.

[8] Sgt. Quirk was questioned about any personal knowledge she had about a petition, which was signed by numerous inmates of Vanier Centre for Women that suggested a conspiracy on the part of J.S. relative to the incidents alleged. It was Sgt. Quirk’s evidence that she was not aware of any such petition.

The Evidence of Sergeant Steven Pryer

[9] Sergeant Steven Pryer testified that he is a Sergeant with the Ministry of Correctional Services, Solicitor General, stationed at the Vanier Centre for Women. Sgt. Pryer was called by the crown to provide evidence relative to the camera angles, which would have been observable from within the sub-control module. He was asked to compare the main control room to the sub-control module, in terms of the number and nature of the camera angles visible. Sgt. Pryer provided evidence that was both credible and reliable.

[10] However, based on the evidentiary record placed before me, I have concluded it is simply not possible to determine which camera angles were observable from within the sub-control module on March 5, 2021, with any level of certainty. Although I found Sgt. Pryer to be a credible witness, he was simply not present inside the sub-control module at the relevant times. Therefore, he did not make any first-hand observations. I do not have any direct evidence on this point, and I find the evidence, which has been placed before me does not permit me to make any findings of fact in this regard.

[11] Therefore, I have put no weight on the evidence of this witness in my final analysis.

The Evidence of J.S.

[12] J.S. was initially an uncooperative witness, repeatedly responding to questions posed by the crown with, “I don’t have anything to say at this time”. Eventually, court broke and J.S. was provided with independent legal advice prior to returning to the witness box the following morning. When J.S. returned, she was responsive and cooperative while being examined-in-chief, and also when pressed by counsel for Mr. Thomas under cross-examination. When I consider the evidence of J.S. in its totality, although her initial presentation was troubling, I don’t find it impacted her credibility or the reliability of her evidence overall. On the whole, J.S. presented as a forthcoming witness who provided evidence that was detailed, candid and flowed logically. I also find that the video surveillance footage was corroborative of aspects of her evidence.

[13] J.S. was questioned about her criminal record and it was filed as an exhibit [1]. J.S. frankly testified that the entries on her criminal record related to what she described as her “drug abuse”. Of note, J.S.’s criminal record also contains entries from 2017 and 2021, which relate to crimes of dishonesty. Those entries are certainly probative with a view to my ultimate assessment of J.S.’ credibility and a factor, which I considered in my final analysis. However, when balanced against the whole of J.S.’ evidence on this record, I did not find J.S.’ criminal record adversely impacted her credibility.

[14] J.S. confirmed that Mr. Thomas let her out of her cell at 12:36:22 p.m. Initially, it was J.S.’ evidence that Mr. Thomas asked her if she “wanted to go to the shower with him?”. However, after refreshing her memory with reference to a statement that she provided to the police on March 8, 2021, J.S. recalled that Mr. Thomas also asked her if she was comfortable going with him to the shower, to which she replied “no”. It was J.S.’ evidence that she felt Mr. Thomas’ question to be awkward, and that she didn’t know what to say. It was also J.S.’s evidence that Mr. Thomas told her to “meet him” at the shower when he attended her cell. When pressed under cross-examination, J.S. rejected the suggestion that she had asked Mr. Thomas to let her out of her cell early on March 5, 2021, so she could take a shower. She specifically denied that Mr. Thomas was facilitating her request, when he let her out of her cell at 12:36:22 p.m.

[15] J.S. testified that she entered the shower area approximately one minute later and stood outside for about ten seconds because she “didn’t know what to do”. J.S. described herself as “indecisive”. I find the video surveillance was corroborative of this aspect of J.S.’ evidence. J.S. recalled that Mr. Thomas told her to leave the shower door “halfway open” within the context of a previous conversation. It was J.S.’ evidence that she didn’t know what was going to happen, that she “knew something”; however, she didn’t know “it was going to be to that extent”.

[16] J.S. testified that Mr. Thomas walked into the shower area and closed the door behind him. When counsel for Mr. Thomas suggested to J.S. that she in fact closed the shower door, J.S. strongly rejected that suggestion.

[17] J.S. recalled that after Mr. Thomas entered the shower area, he asked her to give him “oral sex”. J.S. remembered that she told Mr. Thomas she “did not want to do that”. It was J.S.’ evidence that Mr. Thomas did not respond in any way verbally. However, J.S. testified that somehow, she turned around, which resulted in her facing away from Mr. Thomas. J.S. testified that at that point, Mr. Thomas pulled down her pants, and inserted his penis into her vagina. J.S. recalled that the vaginal intercourse lasted for about “thirty seconds” following which, Mr. Thomas “pulled out” and ejaculated “all over the floor”. When asked about the nature of the vaginal intercourse, J.S. testified that Mr. Thomas “didn’t force it” on her; however, when questioned about whether or not she was “ok” with the intercourse that was happening, J.S. indicated “not really”. J.S. recalled that even though she was not “ok” with intercourse taking place, she “couldn’t for some reason say no”. She elaborated by stating, “it’s a guard and feel kind of awkward to not say no, just because they have authority over you.” J.S. felt that she was wrong because she didn’t say anything whatsoever. However, J.S. was clear that she did not want Mr. Thomas to have sex with her.

[18] It was suggested to J.S. by counsel for Mr. Thomas that she initiated the sexual contact in the shower area. J.S. specifically denied that suggestion. J.S. was also further pressed on why she didn’t say “no” to Mr. Thomas. J.S. responded by reiterating that she did say “no” when Mr. Thomas requested oral sex. With reference to the vaginal intercourse described, she explained, “I just froze and I didn’t say anything, which maybe I should have, but I didn’t. I didn’t say “yes” I didn’t say “no”.

[19] J.S. testified that she felt “very awkward about the whole thing”, and that when she saw the semen on the shower floor, she “dipped” her pants in it. It was J.S.’ evidence that she collected Mr. Thomas’ semen as she was in shock, and that she felt no one would believe her. J.S. also remembered that she didn’t feel comfortable with Mr. Thomas coming back to work after what had transpired. It was J.S.’ evidence that following their interaction in the shower area, Mr. Thomas asked her to shower, so she wet her hair and left a short time later.

[20] J.S. testified that three days later, in the middle of the night, she disclosed to her cell partner that she had “sex with a guard”, that she “wasn’t interested in the guard at all” and that she “just didn’t want anything to do with him”. J.S. recalled that her cell partner didn’t believe her, which lead to a situation of conflict. J.S. remembered that she was worried her cell partner was going to say something to one of the other guards, so she decided to disclose the incident to a Sergeant that she felt comfortable with. J.S. testified that she also provided the Sergeant with her pants, which contained Mr. Thomas’ semen.

[21] While under cross-examination, J.S. recalled that she only had one pair of pants with her when she entered the shower area on March 5, 2021, whereas ordinarily she would have carried an extra pair. However, she didn’t plan on “that happening”. J.S. strongly denied any plan that involved her having vaginal intercourse with Mr. Thomas on March 5, 2021, particularly one that involved extortion. I have concluded that J.S.’ evidence on this point is reasonable and I accept it.

[22] Furthermore, I find J.S.’ only knowledge of any petition signed by other inmates amounts to hearsay on this record.

The Evidence of Dwayne Thomas

[23] Mr. Thomas was not an impressive witness. He provided evidence that I find was intentionally vague, internally inconsistent and at times, completely unbelievable. His evidence was confusing, illogical and I find it was substantially inconsistent with the relevant video surveillance, which was filed as an exhibit on this record. When Mr. Thomas was confronted with the obvious internal consistencies in his evidence, he became extremely evasive. I did not find Mr. Thomas to be a credible witness, nor did I find his evidence to be reliable.

[24] Mr. Thomas testified that in March of 2021 he was working as a correctional officer at Vanier Correctional Facility for Women. It was his evidence that he had been employed as a correctional officer since approximately December of 2016 at that point in time.

[25] Mr. Thomas testified in-chief that at 12:35 p.m. on March 5, 2021, while working in his capacity as a correctional officer, he entered Unit 2 for the purposes of doing a “tour and checking on each of the inmates on that unit”. He recalled that his “backup” was on lunch, so the module was his “backup”. It was Mr. Thomas’ evidence that J.S. had requested a shower earlier in the day, and that he let her know that he would “do his best to make sure it happens”. As a result, Mr. Thomas testified that while he was on his “tour” at 12:35 p.m., he attended J.S.’ cell and asked her “did you still want to take a shower?”. Mr. Thomas recalled that J.S. said, “yes”, so he unlocked her from her cell and told her to go ahead. It was Mr. Thomas’ evidence that he then continued his “tour”, looking into the corresponding inmates’ cells along the upper tier of the unit.

[26] Mr. Thomas’ characterization of his conduct when he entered Unit 2 at 12:35 p.m. on March 5, 2021 as a “tour” was the subject of much cross-examination. While under cross-examination, Mr. Thomas was confronted with the corresponding surveillance video, which he agreed captured his actions at the relevant time [2]. When pressed as to why he neglected to look into numerous cells on the upper tier, notwithstanding the purpose of a “tour” was to check on inmate safety, Mr. Thomas became evasive. Initially, he testified it was possible he was simply neglecting empty cells. However, his evidence on this point was directly contradicted by the video surveillance, which was captured at 7:33 a.m. on March 5, 2021 [3] and subsequently shown to him. In the face of the video surveillance footage, which Mr. Thomas agreed depicted him personally serving breakfast to inmates, Mr. Thomas acknowledged that he would have been aware if there were inmates in the cells on the upper tier of Unit 2. This admission contradicted his previous evidence. Mr. Thomas was then shown video surveillance of his conduct on March 5, 2021, at 12:43:04 p.m. [4] and 6:57:17 a.m. respectively, where he agreed he was conducting a “tour” of Unit 2. Mr. Thomas acknowledged that he was looking in the window of each cell and checking on inmates to ensure their safety on each occasion. This is how he would “normally do a tour”. When faced with the obvious differences in his behaviour between what he initially characterized as a “tour” at approximately 12:35 p.m., and what he agreed were legitimate “tours” on the very same day, again, Mr. Thomas became evasive. Eventually, Mr. Thomas’ evidence became that he “wasn’t sure” whether he was conducting a “tour” of Unit 2 at approximate 12:35 p.m. on March 5, 2021.

[27] I find as fact that Mr. Thomas was not conducting a “tour” when he entered Unit 2 at approximately 12:35 p.m. on March 5, 2021, and attended at J.S.’ cell. Moreover, I find Mr. Thomas intentionally attempted to mislead the court with respect to this area of his evidence, which adversely impacted his credibility, and the overall reliability of his evidence.

[28] Mr. Thomas testified that while J.S. was in the shower area, she called him over by saying something like “Sir” or “Sir, come here.” He recalled J.S. said the “floor is wet” and that she “almost slipped and fell”. Initially, it was Mr. Thomas’ evidence that J.S. provided him with the entirety of that information prior to him attending the shower area. Later in his evidence, Mr. Thomas indicated that J.S. first called out with, “Sir, can you come here?” or something to that effect. It was when he attended at the shower door, but prior to him entering the shower, that J.S. explained the floor was really wet, and that she “almost fell”. Eventually, when confronted with the relevant video surveillance, Mr. Thomas’ evidence became that he immediately entered the shower area with J.S. once he attended to her. There was, in fact, no delay. When confronted with the inconsistencies in this area of his evidence, Mr. Thomas became extremely evasive. Ultimately, his evidence became that while he was “inside the shower”, J.S. advised him that she almost fell and that she “got dizzy”.

[29] Mr. Thomas testified that once he entered the shower with J.S. at approximately 12:39 p.m., she closed the door behind him and started hugging, touching and kissing him. He recalled that J.S. was grabbing his penis and “pretty much making out” with him. Then, she pulled down her pants and bent over a bench that was in the shower area. At this point, it was Mr. Thomas’ evidence that his response to J.S. was, “not without a condom”. This, notwithstanding he maintained it was not his intention to have sex with J.S. when he entered the shower with her. When I consider Mr. Thomas’ evidence on this point in the context of the evidentiary record in its entirety, I find it completely unbelievable.

[30] Mr. Thomas testified that after he told J.S. “not without a condom” she turned around, her pants still pulled down, came over to where he was, unzipped his pants, pulled out his penis, and manually masturbated him to ejaculation. It was Mr. Thomas’ evidence that he did not want the encounter with J.S. to happen; however, he “let it happen”. He “didn’t say anything or do anything”. After he ejaculated. Mr. Thomas recalled that he put his penis back in his pants and left the shower area without the pair exchanging any words. I find this area of Mr. Thomas’ evidence was inherently implausible. Simply put, when considered within the context of the totality of the evidence, it did not have a “ring of truth” to it.

[31] Mr. Thomas remembered questioning his judgment immediately, and expressed feelings of being taken advantage of by J.S. Mr. Thomas acknowledged that he did not call for backup at any point throughout his interaction with J.S. in the shower.

[32] Of note, near the end of his evidence, and while under cross-examination, Mr. Thomas acknowledged that he brought a brown paper bag into Unit 2 at approximately 12:25 p.m. [5] on March 5, 2021. He testified that he was unsure as to whether or not the bag contained supplies, although that was most likely the case. When pressed, Mr. Thomas agreed that he proceeded to wrap the brown paper bag in a towel and ultimately, at approximately 12:27 p.m., he left it in the same shower he attended with J.S. some twelve minutes later. Significantly, at approximately 12:28 p.m., while on his way out of Unit 2, Mr. Thomas agreed that the relevant video surveillance depicted him stopping by J.S.’ cell and having a conversation with her through the “hatch” [6]. Mr. Thomas was not able to recall what the pair were speaking about. On my review, I find Mr. Thomas’ efforts to conceal the brown paper bag with a towel, his uncertainty surrounding its contents, and the timing of his conversation with J.S. through her “hatch” to be very telling on this evidentiary record. In particular, because it is only minutes later, at approximately 12:39 p.m., that the pair enter the very same shower area together.

[33] When Mr. Thomas was questioned about a petition, which may have been circulating around the institution, his evidence was that he “didn’t see it personally”. Rather, he became aware of things that “were going around the jail”. Alleged “conversations between inmates and staff”, which he characterized as “rampant”. As such, I find any knowledge Mr. Thomas had of a petition circulating around Vanier Centre for Women amounts to hearsay.

Grounding Legal Principles:

[34] Mr. Thomas is presumed innocent unless and until the crown has proven his guilt beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution: R. v. Nyznik 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 4. The presumption of innocence and the standard or proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence. Without these protections, there would be a serious risk of wrongful convictions, an outcome, which cannot be accepted in a free and democratic society: R. v. Nyznik at para. 5.

[35] The concept of proof beyond a reasonable doubt was articulated by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if I believe Mr. Thomas is probably or likely guilty, that is not sufficient. In those circumstances, I must give the benefit of the doubt to Mr. Thomas and find him not guilty, as the crown would have failed to prove his guilt beyond a reasonable doubt. It would not be safe to convict: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39; R. v. Nyznik at para. 6.

[36] On the other hand, I have reminded myself that it is virtually impossible to prove anything with absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. Essentially, before I can find Mr. Thomas guilty, I must be sure that he has committed the offences charged: R. v. Lifchus at para. 39; R. v. Nyznik at para. 7.

[37] Given that Mr. Thomas, the defendant, has provided evidence, the framework set out in R. v. W(D.), [1991] S.C.J. No. 26 applies. Specifically, the test outlined at paragraph 28:

(1) If I believe the evidence of Mr. Thomas, obviously, I must find him not guilty;

(2) Second, even if I do not believe the testimony of Mr. Thomas, but I am left in reasonable doubt by it, I must find him not guilty;

(3) Finally, even if I am not left in doubt by the evidence of Mr. Thomas, I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Thomas.

[38] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:

(1) Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

[39] With respect to the offence of sexual assault, the actus reus consists of three essential elements, each which must be proven by the crown beyond a reasonable doubt. In this case, the crown must establish: (1) that Mr. Thomas knowingly touched the complainant (2) that the touching was of a sexual nature; and (3) that the complainant did not consent to that sexual contact: R. v. Nyznik 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 8 (SCJ). In this case, there is no issue that Mr. Thomas knowingly touched J.S. and that the touching was of a sexual nature. The sole issue relevant to my analysis on this count is consent.

[40] “Consent” is defined in s. 273.1(1) of the Criminal Code of Canada as “the voluntary agreement of the complainant to engage in the sexual activity in question: R. v. Barton 2019 SCC 33, [2019] 2 S.C.R. 579 at para. 88. “Consent” is the conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 31; R. v. Barton at para. 88 and it must be freely given: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 36; R. v. Barton at para. 88.

[41] “Consent” is treated differently at each stage of the analysis. For the purposes of the actus reus “consent” means that the complainant, in her mind, wanted the sexual touching to take place: R. v. Ewanchuk at para. 48; R. v. Barton at para. 89. Therefore, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. If the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no “consent”: R. v. Ewanchuck at para. 31; R. v. Barton at para. 89. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established: R. v. J.A. at para. 37; R. v. Barton at para 89.

[42] Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain she has truly changed her mind before proceeding with further intimacies: Ewanchuck at para. 52. The accused cannot rely on the complainant’s silence or ambiguous conduct to initiate sexual contact. Where the complainant expresses non-consent, the accused has a corresponding escalating obligation to take additional steps to ascertain “consent”: Ewanchuk at para. 99. “Consent” is stripped of its defining characteristics when it is applied to submission, non-resistance, non-objection or even the apparent agreement of a deceived unconscious or compelled will: R. v. Adepoju [2014] A.J. No. 246 at para. 11 quoting the Supreme Court of Canada in Ewanchuk.

[43] The presumption of innocence applies to a person accused of sexual assault in the same way that it applies in any other criminal offence. The crown must prove that this was an act of assault rather than consensual contact. I have reminded myself that there is no burden on the defence to prove that J.S. consented to any sexual contact, which may have occurred between the parties. Rather, the burden is on the crown to prove beyond a reasonable doubt that Mr. Thomas had sexual contact with J.S. without her consent: R. v. Nyznik supra. at para. 10. That burden never shifts.

[44] In R. v. Boulanger 2006 SCC 32, [2006] 2 S.C.R. 49 at para. 58 Justice McLachlin concluded that the offence of breach of trust by a public officer will be established where the crown proves beyond a reasonable doubt the following elements:

(1) The accused is an official;

(2) The accused was acting in connection with the duties of his or her office;

(3) The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;

(4) The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and

(5) The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

Analysis

[45] I have considered Mr. Thomas’ evidence within the context of the complete evidentiary record, which has been placed before me. I do not believe Mr. Thomas. I find he provided evidence that was internally inconsistent, and in direct conflict with the relevant video surveillance. When confronted with those inconsistencies, I find Mr. Thomas became extremely evasive. I also find that Mr. Thomas attempted to intentionally mislead the court with respect to the purpose of his entry on to Unit 2 at approximately 12:35 p.m. on March 5, 2021. This was troubling and undermined his credibility and the ultimate reliability of his evidence.

[46] When considered against the backdrop of the entire evidentiary record, I find Mr. Thomas’ account of his encounter with J.S. in the shower area to be inherently implausible. Mr. Thomas’ evidence about responding to J.S.’ unwanted sexual advances with, “not without a condom” is unbelievable. Particularly, because Mr. Thomas maintained that when he entered the shower area with J.S., he had no intention of engaging in sexual contact with her. Viewed in context, I also find it implausible that, following Mr. Thomas’ stating “not without a condom”, J.S. proceeded to remove his penis from his pants and manually masturbate him to ejaculation, without Mr. Thomas saying or doing anything.

[47] On the whole, Mr. Thomas’ evidence was farfetched, and illogical. To be clear, I do not accept Mr. Thomas’ evidence, nor am I left in a reasonable doubt by it.

[48] However, my analysis is far from over. Even though I do not accept Mr. Thomas’ evidence, nor am I left in a reasonable doubt by it, I still must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt of Mr. Thomas’ guilt.

[49] I find J.S. was a credible witness, who provided logical and reliable evidence. Moreover, aspects of J.S.’s evidence were corroborated by the video surveillance, which I find enhanced her overall credibility. J.S. was able to provide details surrounding her interaction with Mr. Thomas. She recalled relative body positions, and her evolving state of mind. J.S.’s candid evidence when she recalled feeling “awkward” and noting that Mr. Thomas, as a guard, had “control” over her was very telling. It provided insight into her internal thought process, and she processed and reacted to the sexual contact she described. J.S. was frank when asked about whether Mr. Thomas was forceful throughout their sexual encounter, and although J.S. was clear that she did not want the sexual contact between the parties to happen, she openly admitted that she did not tell Mr. Thomas “no” after refusing to provide him with oral sex. When considered in context, I find J.S.’ evidence surrounding her interaction with Mr. Thomas in the shower area is plausible and I believe her. I believe that J.S. refused to provide Mr. Thomas with oral sex after he entered the shower area. I accept following that, she “froze” and did not say anything prior to Mr. Thomas pulling down her pants and penetrating her vaginally. Significantly, I believe that J.S. did not want the sexual contact with Mr. Thomas to happen.

[50] Prior to carrying my analysis forward, I think it is helpful for me to review the findings of fact I have made based on the evidence, which I have accepted on this evidentiary record. I have made the following factual findings:

(1) When Mr. Thomas entered Unit 2 at approximately 12:35 p.m. on March 5, 2021, he did not do so for the purpose of conducting a “tour”;

(2) Further, I find Mr. Thomas attended J.S.’ cell and communicated with her for the purpose of J.S. attending the shower area with him. I accept that J.S. did not ask Mr. Thomas for a shower previous to this interaction between the pair. He was not facilitating her request;

(3) I also find that J.S. attended the shower area and waited for Mr. Thomas. I find that Mr. Thomas attended the shower area, and it was Mr. Thomas who closed the shower door. I find that Mr. Thomas was not attending the shower area in response to J.S. calling him over to assist her;

(4) In addition, I find that once inside the shower area, Mr. Thomas requested that J.S. provide him with oral sex to which J.S. responded “no”;

(5) I also find that Mr. Thomas then pulled down J.S.’ pants, inserted his penis into her vagina, and engaged in sexual intercourse with her until he removed his penis and ejaculated on the shower floor;

(6) I find that after J.S. refused to provide Mr. Thomas with oral sex, she did not verbalize anything further. I accept the evidence she provided on this record, that she “froze”. That she didn’t say “yes”; however, she didn’t say “no” either; and

(7) Finally, I find that J.S. did not want the sexual contact between her and Mr. Thomas to happen.

Did Mr. Thomas commit a sexual assault on J.S. contrary to Section 271 of the Criminal Code of Canada?

[51] Counsel for Mr. Thomas has conceded that he knowingly touched J.S. and that the touching was of a sexual nature. Turning my mind towards the issue of consent, I have accepted J.S.’s evidence, that she did not want the sexual contact with Mr. Thomas to happen. I believe that J.S. did not want Mr. Thomas to penetrate her vaginally. I have reminded myself that J.S. need not express her lack of consent for the actus reus of the offence to be established. Consent is not silence, nor is it submission.

[52] On these particular facts, after J.S. expressed her unwillingness to engage in sexual contact with Mr. Thomas, I find he had a corresponding escalating obligation to take additional steps to ascertain “consent”. Considering the evidentiary record in its entirely, I do not find Mr. Thomas took appropriate steps. He was not able to rely on J.S.’ silence or ambiguous conduct to initiate further sexual contact with her, after she refused to provide him with oral sex. I find Mr. Thomas intentionally touched J.S. for a sexual purpose, and that contact occurred without her consent.

[53] Therefore, I find that the crown has proven beyond a reasonable doubt that the sexual contact between Mr. Thomas and J.S., in the shower area at Vanier Centre for Women, was an act of assault rather than consensual contact.

Did Mr. Thomas, on March 5, 2021, being an official peace officer employed at the Vanier Centre for Women, commit a breach of trust in connection with the duties of his office, contrary to section 122 of the Criminal Code of Canada?

[54] Carrying my analysis forward, given the evidentiary record before me and the position of both parties, there is no dispute that at the time of the allegations, Mr. Thomas was an official, who was acting in connection with the duties of his office. In this case, as a correctional officer at the Vanier Centre for Women.

[55] I find that Mr. Thomas intentionally penetrating J.S. vaginally in the shower area, without her consent, breached the standard of responsibility and conduct demanded of him by the nature of his office as a correctional officer. Objectively, I further find that committing a sexual assault on J.S. represented a serious marked departure from the standards expected of an individual in his position of public trust.

[56] Finally, I find that as a result of his position as a correctional officer, Mr. Thomas exercised control over J.S. He let her out of her cell and communicated with her for the purpose of J.S. attending the shower area with him. Once in the shower area, Mr. Thomas committed a sexual assault on J.S. Therefore, I find he used his position as a correctional officer for a purpose other than the public good.

[57] The crown has proven all the elements of the requisite test beyond a reasonable doubt.

Conclusion:

[58] In the result, Mr. Thomas is found guilty as charged with respect both counts charged on the information, which is before the court.

Released: May 17, 2023 Justice Jennifer Campitelli

[1] Exhibit 9 [2] Exhibit 5-G [3] Exhibit 5-E [4] Exhibit 5-E [5] Exhibit 5-E [6] Exhibit 5-G