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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 08 16 COURT FILE No.: 18-450003327 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Mohammad Isaq JAHFARI

Before: Justice Cidalia Faria

Heard on: March 28, 29, 31, April 6, 2023

Reasons for Judgment released on: August 16, 2023

Counsel: Mohsin Yousuf, counsel for the Crown Stefan Rinas, counsel for the accused Mohammad Isaq JAHFARI

Faria J.:

I. Overview

[1] Mohammad Isaq Jahfari was charged with sexual assault and sexual interference contrary to ss. 271 and 151 of the Criminal Code.

[2] The trial commenced on March 27, 2023 [1]. The Crown called the complainant, A.N. who adopted his videotaped statement made to police. The Crown also called two officers and filed series of exhibits.

[3] Mr. Jahfari testified on his own behalf and filed an audio call.

[4] It is alleged that on July 11, 2018, fifteen-year-old A.N. was walking home from school when Mr. Jahfari stopped and offered to drive him home. Once A.N. was in the vehicle, Mr. Jahfari asked A.N. to make a call for him. The boy made the call. Mr. Jahfari then proceeded to drive around the area. While doing so, he allegedly put his hand on the boy’s thigh, pulled his head to kiss it, parked his vehicle and kissed A.N. on the lips before he drove to the intersection of Steeles and Islington, and dropped A.N. off.

II. Admissions

[5] A.N.’s age and that he could not consent to sexual activity are not in dispute.

[6] Given A.N. picked Mr. Jahfari out of a properly conducted police line up, and Mr. Jahfari testified he picked up the boy, identity, jurisdiction, and date are not at issue.

[7] Similarly, Ministry of Transportation documents [2] and one of the Agreed Statement of Facts [3] filed by the Crown demonstrate that a black Mazda 4-door vehicle is registered to Mr. Jahfari’s son, at Mr. Jahfari’s address, and Mr. Jahfari drives that vehicle. Mr. Jahfari also admitted he was driving the vehicle.

[8] In a second Agreed Statement of Facts [4], the continuity and veracity of the surveillance videos filed from 175 Fenmar Drive on July 11, 2018, which captured the backlot and the motion of the black Mazda 3 in a narrow driveway between the visitor parking lot and a backlot were admitted, A.N.’s evidence about what they showed was unchallenged and Mr. Jahfari testified that was him in the black Mazda 3 in the surveillance video.

III. Issue

[9] At issue is:

i. Exactly where on A.N.’s body did Mr. Jahfari touch and how many times?

ii. Did the touching have a sexual purpose?

iii. Were the circumstances of the touching sexual in nature?

IV. Position of the Parties

[10] The Crown submitted A.N. was a reliable and credible witness, particularly when his age is considered, and his evidence is evaluated in the context of all the other evidence before the court.

[11] The Crown submitted the evidence of Mr. Jahfari should be rejected as he was not reliable or credible. Mr. Jahfari’s memory was weak, he speculated, and his testimony was implausible, internally inconsistent and contrived [5].

[12] The Defence submitted Mr. Jahfari should be acquitted of both charges because:

(i) The complainant’s evidence should be rejected as inconsistent, unreliable, and not credible.

(ii) The complainant had a motive to fabricate an allegation of sexual assault and did so.

(iii) The court should accept Mr. Jahfari’s version of events that he did not touch A.N.’s thigh or his cheek, and he did not kiss him on the lips, therefore there was no sexual purpose and there were no sexual circumstances.

(iv) If the court accepts Mr. Jahfari’s testimony that he “may have kissed” A.N. on his head, the touching did not have a sexual purpose, and was not in sexual circumstances.

(v) Even if the court does not accept Mr. Jahfari’s testimony, it raises a reasonable doubt.

[13] The Defence concedes that if the court finds Mr. Jahfari kissed A.N. on the lips, the charges have been proven.

V. Summary of Evidence

A. A.N. [6]

[14] On July 11, 2018, 15-year-old A.N. finished his summer school class and went to wait for his mom. She had dropped him off and he assumed she would pick him up. She was not there. He realized he had misunderstood and had to take transit home. He reached into his back pants pocket for his bus fare but realized he had left it in his other pants. His phone was dead. His only option was to walk home. He decided to try to take a short cut from his bus route so as not to double back on Steeles. He was worried about being late and his mom getting angry with him.

[15] While walking on Toryork Drive, a black 4-door vehicle pulled up to him. The driver asked if he knew the area. He said no. The man asked why. A.N. explained he was trying to get home and was not sure where he was. The man offered to drive him home. The “mixture of not wanting to get in trouble when I got home kind of superseded” [7] his judgment. He got into the vehicle.

[16] The man then drove in the opposite direction and said he had to do something first.

[17] The man asked him his age. He lied and said 13 because he “didn’t trust him”. [8] The man asked him his name. He lied again and said it was Michael.

[18] The man first drove to 175 Toryork. He said he was a mechanic and wanted to rent a unit for a mechanic shop. He gave A.N. a pad of paper and a pen and asked him to take down the number from a large sign. The man called the number on his phone and instructed A.N. to speak to the call taker about renting a unit. He told A.N. what to say, interrupted him, and oscillated between saying “rent” and “lease”. A.N. felt pressure that if he said something wrong, the man could hurt him. The call took about 7-8 minutes.

[19] The man drove A.N. around for about 30 minutes during which time A.N. did not know what to expect and felt afraid. [9]

[20] A.N. identified on a map where he had been driven, including that he had been driven. The man drove to 155 Toryork, made a U-turn, made a right on Ormont, left on Fenmar, made another U-Turn and went back onto Fenmar, and past the Ormont intersection. [10]

[21] During this drive, A.N. testified the man “would touch my cheek” and “tap my thigh.” He would leave his hand there, even moving A.N.’s hand when it was in the way, to put his own hand on A.N.’s thigh. A.N. testified “alarm bells started ringing in my head, like okay, you might be in danger here”. [11]

[22] On the video A.N. demonstrated how the driver would reach over with his right hand, cup A.N.’s chin, and pull his head towards him to kiss the top of his head. He did this twice while saying he was happy.

[23] At 175 Fenmar, the driver turned into a driveway to the back circular lot where 2 workers were. He then made a U-turn, exited the backlot, and parked in an empty visitor spot. He turned off the engine. While parked, A.N. testified the driver “brought my head over, and then I thought he was gonna kiss me on the head again and uhm then he said ‘move your head up’ I was like so I did this and then he kissed me here then right here and then he started kissing me on my lips”.

[24] A.N. demonstrated to the officer during his statement how the man cupped his chin, pulled his head close to him, lifted his face and kissed him on the right side of the forehead, the right cheek, and then on the lips. “At first his mouth was closed - and then he went he tried to do it again, and this time his lips were slightly separated – it was brief.” [12]

[25] When asked how he felt, A.N. said “disgusted”, “initially scared”, and he “started feeling really stupid” and “felt dirty”. [13] At the time he tried to find an excuse to stop the activity and told the man someone was nearby so as to distract him though no one was there. The man asked if he was lying.

[26] The man drove out of the parking spot, made a left onto Fenmar Drive and past Ormont. He asked A.N. to have lunch, A.N. said no. He asked A.N. to meet the next day at 1 p.m. A.N. said no. He asked A.N. if they could be together until 9 p.m. A.N. said no. He asked A.N. for his address several times, A.N. said it was Steeles Ave.

[27] Once at Islington and Steeles, the man drove into a plaza. A.N. said this where he lived. The man gave him a $20 bill for lunch, and A.N. jumped out of the car and hid until the vehicle drove off.

[28] A.N. walked home which took some time. His mother was not there when he arrived. He called the Kids Help Line several times. It took a while to reach them. He was transferred to the police. Eventually his mother came home, and police officers attended.

[29] A.N. provided a description of the man, the vehicle, and the locations he had been taken. He provided a video taped statement. A month later he identified the man, Mohammad Isaq Jahfari in a photo line up.

B. Detective Constable Ray Hobson

[30] Officer Hobson testified:

He took A.N.’s statement.
He drove the route described, found the large lawn sign at 175 Toryork Drive as described, and called the number on it.
He seized the surveillance video of the 175 Toryork driveway which captured a black 4 door Mazda 3 drive into the backlot, turn, come back, and park in the visitor spot as A.N. had described. [14]
He learned the Mazda 3 was registered to Ahmed Reza Jahfari, at Mohammad Jahfari’s address, who, per his driver’s licence photo, fit A.N.’s description of the driver.
He asked Forensic Identification Science (FIS) to compile a photo line up and instructed DC Just to administer the line up on August 20, 2018. The lineup consisted of 12 photos and when he received the package back, A.N. had identified Mr. Jahfari as the driver of the car, the man who touched and kissed him.

C. Mohamad Jahfari

[31] Mr. Jahfari testified that around lunch time on July 11, 2018, he was driving in the Finch area, he can’t remember what street, looking to rent a mechanic shop. He saw a sign with a number and called it. He did not understand the woman on the telephone speaking English, saw a young boy close by, and asked for his help to get an address and translate for him.

[32] He testified the boy took his cellphone, asked for a paper and pencil, asked to get into his car, and spoke to the woman for about 10 minutes.

[33] He testified the boy said he was hungry, so he said “I’ll buy you some food. Let’s go and find the address.” The boy directed him where to drive. He “took me here and he took me there.” [15]

[34] When asked if he had kissed the boy, Mr. Jahfari testified “I just want to tell you something – when he said he’s hungry. I felt very compassionate. I have six children of myself. Perhaps on the basis of friendship like, my own child, perhaps I kissed his head”.

[35] Mr. Jahfari then demonstrated to the court by leaning to his right, raising his right arm to level to his head, leaning toward his hand and moving forward with his head, and testifying “Yes, I kissed his head,” because he “felt sorry for him”. He said the boy “was a very polite, very good boy.”

[36] He then stopped at Steeles and Islington, where the boy lived, and gave him $20 to buy food as he did not have time to buy it himself. [16]

[37] In cross-examination Mr. Jahfari denied he touched A.N.’s thigh or kissed his cheek or lips. He denied discussing the boy’s age or wanting to spend the day with him. He denied asking him to meet the next day.

[38] He also testified that:

He has been in Canada for over 23 years and came with 6 children who are all fluent in the English language.
He worked as an auto mechanic for close to 18 years, both for others and himself, but had never taken down an address, or had to write anything during work as he does not write in English. He only spoke to customers in his own language and not “people from Canada”.
Though he had an iPhone with the contact numbers of his family, friends and professional contacts who speak English, he did not seek their help as they were busy, and the boy could help him.
His plan that day was to go to a mechanic shop.

[39] When asked why did not ask two adults who he had driven by in the backlot of the Fenmar address, he said he did not want to waste their time, he did not like the look of the place. When asked why he trusted the judgment of a child, he said children are smart.

[40] He agreed he drove A.N. around for about half an hour looking for an address, but insisted it was A.N. who directed him where to drive the whole time. It was A.N. who decided to go to the back of 175 Fenmar Dr.

[41] When asked about specifics or to comment on the surveillance video showing him driving into the backlot of 175 Fenmar, circle out, and park in the visitor parking spot with a strange young boy in his car, he said he did not remember, he could not say, maybe he was taking a phone call, he did not know, the incident was 5 years ago, and he is 67 years old.

[42] Mr. Jahfari described his memory as “forgettable”. He testified “Yes, I just want to say that my apologies to everyone. There might be some errors, some mistakes on my part, please let me know if there was some errors or mistakes.” When pressed about his memory and whether he had made errors and mistakes regarding the events at issue, he responded “Yes, for the things that I am not able to say one hundred per cent for sure. That’s what I meant. [17]

[43] When cross-examined on kissing A.N. at one point, he stated he “may have kissed his head on one occasion, but I don’t remember that” “because I felt sorry for him”. At another point when it was suggested he kissed A.N.’s forehead at least twice, he stated, “I did not do that”. [18]

[44] At another point, Mr. Jahfari suggested that A.N.’s mother told him what to say, at another point he digressed into how generous a person he is as he has given $20,000 for someone’s wedding and so $20 was nothing.

VI. Legal Principles

A. General Principles

[45] As in every criminal case, Mr. Jahfari is presumed innocent. The onus rests on the Crown to prove the essential elements of the offence beyond a reasonable doubt. The onus never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. R. v. Lifchus, [1997] 3 S.C.R. 320 at ¶ 39.

[46] Known as the Browne v. Dunn rule, if a party seeks to impeach a witness on a particular issue, they are to direct the witness to the issue in cross-examination and allow the witness an opportunity to state their position. [20] This rule is to ensure fairness to the witness whose credibility is attacked, to the party whose witness is impeached and to the trier of fact, in addition to other purposes. R. v. Quansah, 2015 ONCA 237 and R. v. Smith, October 12, 2005 (Ont.C.A.) unreported (Weller, Blair, LaForme JJA.) [21] The lack of cross-examination on a point is a matter of weight to be decided by the trier of fact, and the absence, or brevity, of cross-examination depends on the circumstances of each case. Palmer and Palmer v. The Queen, 50 C.C.C. (2d) 193 (S.C.C.) [22] Not every minor detail need be put to a witness but substantive points ought to.

[47] Should the defendant testify on a point that a witness was not cross-examined on, the credibility of the defendant’s testimony will depend on many factors, some of which are the nature of the point, the overall tenor of the cross-examination, and the overall conduct of the defence. R. v. Paris, 2000 ONCA 17031 [23]

B. Elements of Offences

[48] For the charge of sexual interference s.151, the prosecution must prove each of the following elements beyond a reasonable doubt:

i. A.N. was less than 16 years old at the time.

ii. Mr. Jahfari intentionally touched A.N., either directly or indirectly.

iii. The touching was for a sexual purpose.

[49] For the charge of sexual assault s.271, the prosecution must prove each of the following elements beyond a reasonable doubt:

i. Mr. Jahfari touched A.N. directly or indirectly.

ii. He touched A.N. intentionally.

iii. The touching took place in circumstances of a sexual nature

iv. A.N. did not consent to the sexual activity in question; and

v. Mr. Jahfari knew that A.N. did not consent to the sexual activity in question.

[50] The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one. It is to be viewed in light of all the circumstances, and the sexual or carnal context of the sexual assault is to be visible to a reasonable observer given the body part touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanies by force, will be relevant. R. v. Trachy, 2019 ONCA 622 at ¶72.

[51] I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be a complainant of sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577 at ¶ 679-680, R. v. Darrach, 2000 SCC 46 at ¶ 32-37, R. v. Find, 2001 SCC 32 at ¶ 103, R. v. JL, 2018 ONCA 756 at ¶ 46-47, R. v. JC, 2021 ONCA 131 at ¶ 93-98, and R. v. JJ, 2022 SCC 28 at ¶ 1.

C. Credibility and Reliability

[52] Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall, and recount the events must be assessed. A credible witness may give unreliable evidence R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at para 33; R. v. H.C., 2009 ONCA 56 at para 41. [26] Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt R. v. J.J.R.D., 2006 ONCA 40088 at para 47; R.. v. J.W., [2014] O.J. No. 1979 (C.A.) at para 26. [27] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27. [28]

[53] In assessing each witness’ testimonial account, I must consider its internal consistency; its consistency with previous accounts; the significance of any inconsistencies; a witnesses’ interest in the outcome of the case if any; and whether an account is inherently logical.

[54] To assess reliability, I must consider the circumstances of the observer, the recollection of events over time, the intentional or unintentional tainting by other sources of information; a witness’ mental capabilities and limitations if any; their level of sophistication, and to a lesser degree the witness’s testimonial demeanor to name a few.

D. Children’s Evidence

[55] In this case I am mindful of the fact the prosecution’s witness was 15 years of age at the time of the allegations and 19 when testifying. The Supreme Court of Canada established a “common sense approach” to the assessment of the credibility and reliability of children’s evidence. Though the standard of proof remains the same, this approach recognizes that children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to [their] mental development, understanding and ability to communicate. Absolute precision as to the details of an alleged offence is unrealistic and unnecessary. R. v. B.(G), [1990] 2 S.C.R. 30 at para. 48.

[56] Inconsistencies must be addressed. They vary in their nature and importance. Some inconsistencies are minor, others are not. Some concern material issues, others are peripheral. In a child’s testimony, particularly as to peripheral matters such as time and location, these inconsistencies must be assessed in the context of age and developmental stage. Courts cannot expect the evidence of a child to have the same cohesive quality of an adult. A flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. R. v. B. (G.), [1990] 2 S. C.R. 30, at para. 48, and R. v. H.G., 2009 ONCA 56 at para. 26. [30]

[57] As I assess the evidence, I am mindful I may accept some, none, or all, of each witness’ account, and I must consider the totality of the evidence to determine if each element of the offence is proven beyond a reasonable doubt, and in its totally the charge has been so proven.

[58] The leading applicable case on credibility and guiding my analysis provides the following test: R. v. W.D., 63 CCC (3d) 397 (S.C.C.) [31]

First, if I accept Mr. Jahfari’s evidence, I must acquit him.
Second, even if I do not accept Mr. Jahfari’s testimony, if it leaves me with a reasonable doubt, I must acquit him.
Third, even if Mr. Jahfari’s evidence does not raise a reasonable doubt, I have to consider all of the evidence to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence.

[59] In assessing competing evidence, I cannot compare each account and decide which account I believe. R. v. Esquivel-Benitez, 2020 ONCA 160 [32] I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected. R. v. J.J.R.D. 2006 ONCA 40088 at paras.46-48, leave to appeal to SCC. Refused, [2007] S.C.C.A. no. 69 [33]

E. Motive to Fabricate

[60] As the Defence also raised the issue of motive, I instruct myself that the accused is not required to demonstrate the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility”. R. v. Batte (2000) 5751 (OCA) at para. 121. [34]

VII. Analysis

A. Assessing A.N.’s credibility and reliability

[61] A.N. testified with remarkable clarity, thoughtfulness, and accuracy, particularly given his young age.

[62] A.N. was internally consistent. His accuracy was in part supported by the surveillance evidence. His description of the vehicle, the driving, the people they passed, the driveway they went into, and the visitor’s spot when the vehicle parked were demonstrated to be correct.

[63] His narrative was coherent and logical. He took particular care to repeat when he was unsure, to describe what he saw when he was being driven around. He acted out and demonstrated what he could not articulate. He paused and considered the answer to questions specifically when it was about locations and directions. He described how he made sure to observe while he was in the vehicle to recount where he was taken. He corrected the officer. He admitted he did not know or understand exactly what was going on at times.

[64] He admitted he lied to the man about his age, his name and where he lived. He was candid about feeling afraid of his mother’s anger and that fear overcame his good judgment.

[65] He admitted he voluntarily got into a strange man’s car, knowing that doing so was something he had been taught not to do, knew not to do, and would be judged for doing. He admitted he was afraid he would not be taken seriously.

[66] A.N.’s call the Kids Help Line, his explanations for his actions, his language, his understanding of what he did, his sense of regret about his decision to get into a stranger’s vehicle, and what happened as a result, were all credible and consistent with his experience and age.

[67] I find A.N. was a credible and reliable witness and I accept his testimony in its entirety.

[68] Counsel submitted there were inconsistencies, omissions, and a motive to fabricate that undermine A.N.’s credibility and reliability. I find they do not, for the following reasons.

i. “Knowing the area”

[69] A.N. testified he did not know the area and told Mr. Jahfari he did not know the area. In his statement, he also said he did not know the area, but to the Kid’s Help Line and to Officer Khan who first responded to the call, he said he did know the area.

[70] In his statement, made hours after the event, A.N. was able to identify the street names and explained he looked at street signs while in the car, his father worked on Fenmar, he was picked up close by for church, and he was trying to take a short cut home from what the bus route he would have taken.

[71] When asked to explain the ‘inconsistency’, he testified he “meant, like, I could recall it. So, if I was to be asked about what happened and where it happened, I’d be able to give information. When I told Hobson that I didn’t know the area. It was in terms of like I didn’t know the overall area, especially when I was walking through it. Like as I was walking through it, I did not know where I was. A lot of my observations and the important observations came when I was in the car.” [35]

[72] This is a logical, credible, and reliable explanation supported by his evidence that on the one hand he knows the area because he made observations while in the car, his father worked on Fenmar, his church was close by as was his bus route, and on the other hand, he was not familiar with where he was because he was walking and trying to take a short cut from his normal bus route.

[73] I do not find this inconsistency, if it is one, to be any significance.

ii. “Tried to kiss me”

[74] After A.N. arrived home, he called the Kids Help Line several times. When he finally got through, he said the man driving the car tried to kiss him. When A.N. spoke to Officer Khan in the presence of his mother, he again repeated the man driving the car tried to kiss him. When A.N. provided his statement to police, he told Officer Hobson the man touched his thigh and his cheek and that he had kissed the top of his head, his forehead, his cheek, and his lips, twice.

[75] Counsel submitted this is a major inconsistency. I do not find it so.

[76] A.N. explained: I didn’t go into like full detail as to what happened throughout the event. It wasn’t just the kissing part that was not fully explained. [36] Because I was much more comfortable speaking with Hobson as to, that’s why I was a lot more descriptive in what happened during that date. When it was with my mom, I didn’t feel like it was necessarily important to go deep into the whole situation with her. [37]

[77] When challenged that the narrative provided to the Kids Help Line, his mother, and Officer Khan were different than his version of events to Officer Hobson, A.N. testified: Well, what I understand is when you say different, I’d assume like events changed, but realistically I didn’t tell her one thing and tell them the other. It was more of me leaving out certain things in her presence as assumed me speaking to Hobson and giving him the full picture. [38]

[78] When asked to explain further why he did not tell the Kids Help Line, his mother and Officer Khan everything, A.N. testified: Well, because of the initial feelings of embarrassment like, it was kind of in the back of my head like okay, you did something stupid today. Something happened because of that stupid action like, just imagine how people are going to look at you. [39] I kind of made the assumption that, like boys or men can’t be like assaulted sexually. And in the back of my head, also, it was kind of like, okay, it’s a kiss, right? Like, are they really going to take it seriously anyways? So, all of that and everybody knows not to go into stranger’s cars but I did it anyways. Despite knowing that something bad could happen, I still did it. And like, I felt stupid, I know other people were going to think, okay, that was really stupid. So, that was like all in the back of my head when I was trying to explain what was going on. [40]

[79] Moreover, during the video statement, A.N. is observed demonstrating to Officer Hobson on at least two occasions, how the man reached over to A.N. while driving, cupped A.N.’s chin and pulled his head close to “try” to kiss him.

[80] I find those demonstrations can easily be described as the man “trying” to kiss A.N. and his verbal description of that action as an attempt to kiss him in not an inconsistency

[81] I accept A.N.’s explanation and do not find his narrative inconsistent or his omissions, in their context, to be of any concern given his age at the time, his feelings about getting into a stranger’s car, his feelings of embarrassment, his fear of being judged, his concern a kiss would be minimized, his misapprehension that men and boys do not get sexually assaulted and that he was more comfortable with Officer Hobson than anyone else.

iii. Motive to Fabricate

[82] Counsel submitted A.N. fabricated he was sexually assaulted to make his mother less frustrated, angry, and judgmental about the fact he was late coming home and got into a stranger’s car.

[83] The timing of the disclosures, and A.N.’s explanation about what he said to his mother negate the validity to this proposition.

[84] A.N.’s mother was not home when he arrived mid-afternoon.

[85] A.N. chose to tell her he was late, what he had done and that something had happened. Had he chosen not to tell her, she would have been none the wiser. A.N. knew and anticipated his mother would be frustrated, angry, disapproving, and judgmental when he told her what happened, and he did so anyway.

[86] A.N. testified he “felt my mom was going to judge me, because of hearing certain things being said and that kind of pressure was hard. It kind of made it hard for me to kind of admit what really happened in front of her’ [41] and so he explained why he said the man “tried to kiss” him.

[87] Elaborating, exaggerating, or fabricating a sexual assault, or a more serious sexual assault would not ameliorate his mother’s frustration, anger, disapproval, and judgment, but rather, would exacerbate all the emotions he already anticipated and his feeling he had made a “stupid” decision to get into a stranger’s car. [42]

[88] I find no motive to fabricate. This absence of motive, however, does not mean A.N. is telling the truth. I must consider the evidence in its totality.

B. Assessing Mr. Jahfari’s credibility and reliability

[89] Mr. Jahfari’s testimony was at times implausible, vague, unresponsive, and inconsistent.

[90] Mr. Jahfari testified he was in an unfamiliar area but knew that there were “135” and “150” automotive shops there and was looking to rent one. Having testified that he did not write in English, had never taken down an address, and did not understand people on the telephone when they spoke English, he then testified that he went to the area to rent a shop and proceeded with a plan that consisted of all the tasks he could not do: call an English-speaking person on the telephone, obtain an address, and write it down in English.

[91] He testified that his family and friends were busy, so he did what he has done in the past, which is ask for help. The person he chose to help him was a young boy because children are smart.

[92] The Crown submitted this is incredulous. I do not find it necessarily so. I accept as a common occurrence in Toronto that hardworking, employed and self-employed residents who have been here for years, even decades, can be functional and productive members of our community and still experience a language barrier. This barrier requires them to ask for assistance and create ways around the linguistic challenge. There is sufficient diversity in Toronto to sustain employment within a community in our larger society. As a result, I do not find it implausible that Mr. Jahfari could be in Canada for decades, employed, and still need the help of a stranger to deal with his linguistic challenges.

[93] What I do find implausible is that he reached out to a young boy who did not speak his language, could not direct him to where he wanted to go, was of no assistance with his communications on the phone, and he spent 30 minutes driving around to no avail.

[94] It was obvious to Mr. Jahfari that A.N. was of no assistance to him within minutes of A.N. getting into his car, yet Mr. Jahfari testified drove around at the boy’s direction.

[95] A.N. was not cross-examined on this point. He should have been.

[96] However, given A.N.’s specific evidence that he did not know the area well, and that he guessed the man “was looking for like a different place like I didn’t really understand what he was doing,” [43] it was clear A.N.’s evidence is that he was not directing Mr. Jahfari’s driving.

[97] As such, the absence of the question of is of limited consequence as the witness did testify to his role in the vehicle – and it was not that of directing the driving.

[98] I reject Mr. Jahfari’s evidence that it was A.N. who directed his driving.

[99] At time, Mr. Jahfari was also not logical. For instance, he did not like the look of the place – but he need not like the look of a place to just ask for directions. He did not want to waste anyone’s time, but he was wasting A.N.’s time. People were minding their own business, but so was A.N. when he came upon him walking down the street.

[100] Mr. Jahfari was frequently vague and unresponsive. The Crown had to repeat questions several times to get an answer.

[101] Mr. Jahfari also went on tangents promoting himself as a generous person having given people even $20,000 for a wedding and $20 was nothing to him.

[102] He speculated he may have parked to answer a call but said he had received several calls during the drive and had not stopped. On any of those calls in his preferred language, he could have obtained assistance.

[103] Mr. Jahfari was also inconsistent. For instance, first he testified he “may” have kissed A.N. on the forehead, then he confirmed “yes” he did kiss the boy on the forehead. Then he firmly denied he never “did such a thing.”

[104] First he said he offered money to A.N. for food, then he testified, he had money, and paid A.N. for his trouble.

[105] Mr. Jahfari admitted he made errors or mistakes and blamed this on his forgetfulness, his age, the stress of the case, and the fact the encounter was 5 years ago. These may all be valid reasons why he was vague, general, implausible, and inconsistent. It also made his testimony unreliable and not credible.

[106] For these reasons, I do not accept Mr. Jahfari’s evidence.

[107] Even though I do not accept his testimony, I must consider if it leaves me with a reasonable doubt. It does not.

[108] However, I must consider all the evidence to satisfy myself the prosecution has met its high burden. I therefore turn to the issue of the touching.

C. The Touching: Context

[109] I accept A.N.’s evidence that Mr. Jahfari touched him on the thigh repeatedly. I accept that Mr. Jahfari kissed A.N. on the head at least twice, kissed him on the forehead, then his cheek, and then on his lips twice.

[110] I find Mr. Jahfari’s touching was direct and intentional.

[111] I must decide if this touching was for a sexual purpose, and whether it took place in circumstances of a sexual nature.

[112] I find the touching and the kissing was both for a sexual purpose and in circumstances of a sexual nature.

[113] I take counsel’s point that a kiss on the forehead need not be sexual, and it is not to be assumed to be sexual. Neither is a kiss on the cheek. A kiss on the forehead of a child or a teenager by an adult, may very well be a sign of affection devoid of any sexual connotation whatsoever both in purpose and circumstance.

[114] Similarly, a kiss on the cheek can be an act of affection, and/or greeting, again devoid of any sexual connotation both in purpose and circumstance.

[115] Had a kiss on the forehead or the cheek been the only physical contact Mr. Jahfari made, perhaps in greeting, or familiarity, or even “compassion” as he testified, it is possible the touch had no sexual purpose and was not sexual in nature.

[116] However, that is not the circumstances here.

[117] Mr. Jahfari and A.N. were strangers to each other. The touching was not in greeting or affection. No consent was obtained for the contact.

[118] Mr. Jahfari’s repeated touching of A.N.’s thigh was deliberate and persistent in the face of awkward inconvenience. He both moved A.N.s hand away so he could put his own hand on the spot he wanted. Mr. Jahfari was so committed to the touching, he left his right hand on A.N.’s thigh, even as he struggled to turn the steering wheel left with his left hand to make a left turn.

[119] Mr. Jahfari forcibly took A.N.’s face by cupping his chin and moving his head closer to make it accessible to him to kiss while he was driving.

[120] Both actions, asserted physical control and demonstrated a definitive purpose to touch A.N.’s body for personal gratification.

[121] This control and purpose escalated when Mr. Jahfari decided to park his vehicle. He told A.N. he was happy, and again pulled A.N.’s head to him. He verbally instructed A.N. to lift his head, and then definitively demonstrated his sexual purpose and the sexual nature of the touching by first kissing A.N. on the forehead, then moving down to his cheek, and then kissing him on the lips, twice. This was a progression of intimacy and violation.

[122] Mr. Jahfari’s sexual purpose and the sexual nature of the circumstances are clear and obvious to an objective and reasonable observer.

[123] I find Mr. Jahfari’s touching of A.N.’s thigh, his kissing of A.N.’s head, his forehead, his cheek, and his lips were all for a sexual purpose and in circumstances of a sexual nature.

D. Grooming

[124] Both parties made submissions on whether Mr. Jahfari’s conduct constituted grooming. The Crown submitted it did and the Defence submitted it did not.

[125] A.N. testified that Mr. Jahfari:

i. Offered to take him to lunch.

ii. Gave him $20 to buy lunch.

iii. Told him he had a lot of money and opened the middle console of the vehicle to show him about ten $50 bills folded in a U-shape.

iv. Offered him a job as a manager in the mechanic shop he was looking to rent.

v. Asked him at 1:30 p.m. in the afternoon, if could drop him off at 9 p.m. in the evening.

vi. Asked to meet him the next day at 1:00 p.m.

[126] I need not determine whether Mr. Jahfari’s objective when he picked A.N. was predatory to find that it became so once A.N. was in the vehicle.

[127] Individually, and together, each of Mr. Jahfari’s attempts to impress, influence, and persuade, are attempts to ingratiate himself to A.N. He tried to present himself as a generous and kind person with money and who would give him a job. Just before kissing him, A.N. testified Mr. Jahfari said he was happy. These are all signs of building a relationship and attempts to create trust.

[128] This conduct can be characterized as efforts to “groom” A.N. and to facilitate meeting him again. I find Mr. Jahfari’s actions to be grooming.

VIII. Conclusion

[129] I accept A.N.’s testimony that he was sexually assaulted.

[130] I reject Mr. Jahfari’s evidence, it did not raise a reasonable doubt, and on the totality of the evidence, I am satisfied that the prosecution has met its onus and proven every element of both offences beyond a reasonable doubt.

[131] Mr. Mohammad Isaq Jahfari, I find you guilty of sexual assault and sexual interference.

Released: August 16, 2023 Signed: Justice Cidalia C. G. Faria

Exhibits and References

[1] The Defence filed a Charter application alleging Mr. Jahfari’s ss. 7,9, and 11(e) rights were violated for not having been brought before a Justice of the Peace within 24 hours contrary to s. 503(1) of the Criminal Code. The Crown conceded the breaches, and the remedy was litigated. The court provided oral reasons the next day, and written reasons on June 12, 2023, ordering the exclusion of Mr. Jahfari’s statement to police as the remedy for the Charter violations.

[2] Exhibit 15: Ministry of Transportation, Registration, March 20, 2023

[3] Agreed Statement of Facts: Constable Narin and Constable Hampson, re January 3, 2019 and February 11, 2021.

[4] Exhibit 12: Agreed Statement of Fact, Michael Miles.

[5] The Crown also submitted that Mr. Jahfari’s evidence was tailored to A.N.’s evidence. This is tantamount to submitting that Mr. Jahfari tailored his evidence to disclosure, and I disregard the submission.

[6] Pursuant to a successful s. 715.1 Application, A.N. adopted his video/audio statement made to police on July 11, 2018. It became Exhibit 5a.

[7] Transcript, March 28, 2023, p. 28.

[8] Exhibit 5b: Transcript of Video Statement of A.N. July 11, 2018 at p. 5.

[9] Transcript, March 28, 2023, p. 29.

[10] Exhibit 1; Map of 175 Fenmar Dr. Toronto. Exhibit 2: Map of 205 Fenmar Dr. Toronto. Exhibit 3: Map of Steeles and Islington, Toronto. Exhibit 4: Area map of Toronto. Exhibit 6: Google Maps marked by A.N. as where the incidents happened.

[11] Transcript, March 28, 2023, at p. 34.

[12] Exhibit 5b: Transcript of Video Statement of A.N. July 11, 2018, at p. 32 - 33.

[13] Transcript, March 28, 2023, at p. 34.

[14] Exhibits 7, 8a, 8b, 8c, 8d, 8e, 9a, 9b, 9c, 9d, 9e, 10a, 10b, 10c and 10e; Video Surveillance from 175 Fenmar Drive in Toronto, on July 18, 2018 between 13:44:50 and 13:47:55 showing black 4 door Mazda 3 with licence plate CECP 813 entering the driveway by 175 Fenmar Drive, stopping behind a truck, going around the truck, into a circular back lot but working adults, making a U turn, returning back out driveway. Pulling into a visitor’s parking spot, parking for 2 minutes, pulling out and driving away. The Exhibits include close ups of the vehicle and still photos.

[15] Transcript, March 31, 2023, p 11.

[16] Transcript, March 31, 2023, p13-14.

[17] Transcript, March 31, 2023, p. 47

[18] Transcript, March 31, 2023, pgs. 48 and 50.

[19] R. v. Lifchus, [1997] 3 S.C.R. 320 at ¶ 39.

[20] Browne v. Dunn (1893), 6 R. 67 (H.L.).

[21] R. v. Quansah, 2015 ONCA 237 and R. v. Smith, October 12, 2005 (Ont.C.A.) unreported (Weller, Blair, LaForme JJA.)

[22] Palmer and Palmer v. The Queen, 50 C.C.C. (2d) 193 (S.C.C.)

[23] R. v. Paris, 2000 ONCA 17031

[24] R. v. Trachy, 2019 ONCA 622 at ¶72.

[25] R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577, R. v. Darrach, 2000 SCC 46, R. v. Find, 2001 SCC 32, R. v. JL, 2018 ONCA 756, R. v. JC, 2021 ONCA 131, and R. v. JJ, 2022 SCC 28.

[26] R. v. Morrissey, [1995] O.J. No. 639 (C.A.); R. v. H.C., 2009 ONCA 56.