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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: September 19, 2024 COURT FILE No.: 3111 998 23 31105688 00
BETWEEN:
HIS MAJESTY THE KING
— AND —
GEORGES SARROUH
Before: Justice A. R. Mackay
Heard on: July 22, 23, 2024 Reasons for Judgment released on: September 19, 2024
Counsel: Joshua Ng, counsel for the Crown Stephen Hebscher, for the defendant Georges Sarrouh
Mackay J.:
Overview
[1] Mr. Sarrouh is charged with sexually assaulting his former employee LM. The defendant testified along with LM and her brother CM. As in every criminal case the Crown must prove the offence beyond a reasonable doubt. The main issue I must determine in this case is the credibility and reliability of the witnesses.
[2] Mr. Sarrouh owned a small accounting company. LM started working part-time for Mr. Sarrouh when she was attending college. Upon completion of her studies at Laurentian she began to work full-time for the defendant. During the eight years she worked for him, they had always had a professional relationship. LM alleged that Mr. Sarrouh sexually assaulted her when she went to his office to assist him with his tax files.
LM
[3] On the day in question, Sunday, April 16, 2023, LM had come into the office to review work with Mr. Sarrouh. It was tax time, and the defendant was extremely busy. After they reviewed a file together LM asked Mr. Sarrouh if there was any other work, he wanted her to take home. At this point in time, they were together in his office. She was sitting at a client chair in front of his desk. Mr. Sarrouh, stood at the door and he said to her “what do you want to do”. She was confused when he said this to her. He then came towards her and touched her face; he then touched her right breast and rubbed it for about 10 seconds. Mr. Sarrouh then leaned in and asked, “can I” and LM said No. She remained seated and he walked away as if nothing had happened. He retrieved some financial statements for her to take home. LM was shocked and did not want to leave as she was not sure what Mr. Sarrouh was capable of. She was disgusted by his behavior. When he returned and handed her the files, she went to the open area of the office to her desk to work.
[4] Mr. Sarrouh had given her three financial statements and LM completed two and said that she could not finish the last one and told him that she had to go. She had stayed in the office approximately 1 ½ to 2 hours before handing him back the files she worked on.
[5] LM never returned to the defendant’s workplace and never communicated with him again. Approximately a week later she told her brother what happened and asked him to return Mr. Sarrouh’s files to him.
[6] In cross examination she said the following. When asked why she stayed and did not take the files home to work on, she stated that the defendant was busy and needed the financial statements to be completed as soon as possible and she was afraid of what he was capable of.
[7] The defence put to LM several times that when Mr. Sarrouh asked her “what do you want to do”, he was asking her if she wanted to work at the office or to take the files home. LM maintained that he simply said, “what did you want to do” and she did not know what he meant.
[8] LM agreed that the exit to the office was close to the desk she was working at. She maintained that she felt uncomfortable walking out and was afraid to leave.
[9] When LM left, she had taken the files that the defendant had gathered for her to work on at home. The work was in hardcopy and on a USB.
[10] Mr. Hebscher suggested to LM that she had been working long hours at her other company and that working for Mr. Sarrouh on an occasional basis was too much. LM replied that she was young, and the work did not bother her. She also readily admitted that she did not put the income she made from the defendant through her business and was not taxed on it.
[11] Counsel also submitted that she expected severance from Mr. Sarrouh from when she left his employment a year earlier. However, LM was quick to point out that she had decided to seek employment elsewhere to obtain more experience and as a result she was not entitled to any severance. She had given Mr. Sarrouh three weeks’ notice. She also disagreed with counsel that she believed she was entitled to a bonus.
[12] LM denied discussing with her brother that the defendant owed her severance or that he should have given her a bonus.
[13] Mr. Hebscher also suggested that her brother was facing financial problems. LM agreed that while her brother lost $200,000.00 in crypto currency he was not in any financial difficulty. In 2023 she referred her brother to Mr. Sarrouh to see if he could provide her brother some tax advice as a result of this loss. While her brother ended up speaking to Mr. Sarrouh she was never apprised as to what they discussed. She disagreed that her brother had encouraged her to ask the defendant for severance. LM further disagreed with counsel’s suggestion that she discussed with her brother that they should seek $80,000.00 from the defendant.
[14] LM denied that she discussed with her brother a blackmail scheme to get money from Mr. Sarrouh. Her brother never told her that he spoke to the defendant about providing her with severance money nor told her that lawyers would get in touch with him.
[15] When L.M told her brother what the defendant did to her, he was disgusted.
[16] Her brother never gave her any indication that he would ask Mr. Sarrouh for money.
[17] When LM went to the police station she went alone.
CM
[18] CM is three years older than his sister. He confirmed that he was a client of the defendant and that he assisted him with his business taxes and personal tax. His professional relationship with Mr. Sarrouh began the same year as the incident in question.
[19] After his sister told him what Mr. Sarrouh had done, he called a lawyer, Robert Geurtz. He received the lawyers name through a friend. He wanted to know what the court process would look like for his sister. He also spoke to this lawyer about his company and about suing two other individuals.
[20] CM ended the professional relationship with the defendant as a result of what his sister had told him. He had to go back to Mr. Sarrouh’s office to pick up his files. Mr. Sarrouh’s name was on his tax files, and he wanted his name removed.
[21] When he attended the office, he spoke to the defendant briefly. He told Mr. Sarrouh that he knew what he had done and that it was wrong. The defendant agreed with CM. Mr. Sarrouh gave him his file and year end statements.
[22] Prior to going to see the defendant, CM intention was to remain calm and not get physical with him. He hoped that the justice system would work the way it is supposed to. Just before he attended at the defendant’s office, he called Mr. Sarrouh to let him know that he was picking up his files.
[23] CM advised that he is not a texter and that he prefers to speak on the phone. He denied demanding money from Mr. Sarrouh and was adamant that his sister never told him to demand money from him.
[24] In cross examination he said the following. CM confirmed that he got advice about the $200,000.00 or $220,000.00 loss in crypto currency. Essentially the loss would be used to reduce any future capital gains. He denied having any serious financial issues.
[25] CM stated his sister never discussed with him that she believed she was entitled to severance. He replied this was not even a thought.
[26] CM was clear that neither he nor his sister were in need of money and that he never asked the defendant for $80,000.00.
[27] CM could not recall the date his sister told him she was sexually assaulted, only that it was after it happened. He believes when LM had told him, she had already gone to police.
[28] CM works as an electrician, in addition, he has three companies. Only one is likely to make any money this year. One of his businesses relates to a real estate property that he owns with another individual.
[29] CM denied ever asking the Mr. Sarrouh for any money. He denied telling the defendant that he would see him on April 21 and denied threatening to tell Mr. Sarrouh’s wife or son about what he had done and denied trying to extort money from Mr. Sarrouh.
[30] An excerpt of a text message was put to CM. It was a message sent from the defendant to CM. CM wanted proof that this text message came from him. He stated that it was easy to create fake messages. He did not recall receiving this message from the defendant. He never mentioned to Mr. Sarrouh anything about a lawyer. In the text message it is the defendant who refers to a lawyer.
[31] CM could not remember if he returned a second time to Mr. Sarrouh’s office. But he did recall that his sister was nervous about attending at Mr. Sarrouh’s office and returning his files.
[32] Later in cross examination, the full exchange of text messages was shown to CM. The previous messages were all about business and were sent prior to the allegations in question. CM never responded to the defendant’s last message.
Georges Sarrouh
[33] Mr. Sarrouh is 66 years old; he owns a general accounting business. He is not a licensed accountant. At the time of the incident, he had three employees. He has plans to retire and is waiting for an offer to sell it. He is married with three grown children.
[34] He confirmed that LM resigned and gave him three weeks’ notice back in September. After this period of time, she worked on a contract basis for him on an as need basis.
[35] On the day in question, he recalled that LM attended on a Sunday because she could not come on the Saturday. It was April 16th; tax time and he was busy with work. When she came to the office, they sat together and reviewed the file.
[36] In the past they have often worked alone together in the office. This was the first time LM came in on a weekend to work at the office. When they reviewed the file, they were in his office, he sat at his office chair and LM sat across from him on the other side of the desk.
[37] After they were finished LM asked him if there was any other work, she could take home. Mr. Sarrouh said he had some work, and he went and put the files together. LM would draft financial statements and prepare corporate taxes.
[38] After they had sat in his office, LM went to work at her workstation which was in the open office, close to the door. She worked for about an hour and half. When she was finished, she told Mr. Sarrouh that she had finished all but one file.
[39] Sometime later her brother brought the file back. On April 24. CM also came to his office without calling in advance.
[40] Mr. Sarrouh denied touching LM’s face or breast.
[41] When CM attended at his office, he told Mr. Sarrouh ‘You know why I am here, and you know what you did to my sister’. His voice was raised. The defendant denied doing anything. Mr. Sarrouh testified that CM said to him ‘we will fight it man to man, or I will tell your wife and son, or I will go to police, and you have to pay for this’.
[42] On April 21, CM told Mr. Sarrouh that his sister worked for him for seven years and she got nothing from him and that she deserves something. He then asked the defendant ‘what is your business worth’ and he started rimming off, random amounts, he said $20K, 30K, 40 K’ and then said ‘80 K’; finally, CM said he will be expecting an $80,000.00 cheque from him.
[43] Mr. Sarrouh calmed him down as he did not want to make it worse. He then contacted his lawyer. CM returned to his office on the Monday. The defendant had spoken to an employment lawyer and then he sent CM a text message on Monday at 8:03. However, CM showed up at his office and dropped off the files that LM took home.
[44] Exhibit 1 reads as follows:
Hi [CM], I suggest not to come to the office, my lawyer will be sending something to your sister today or tomorrow. It’s in his hands now and I was instructed not to discuss the matter with anyone.
[45] There is no mention of a cheque in this email and CM did not respond to it.
[46] In cross examination Mr. Sarrouh disagreed that CM only came to take his files. He said he came to talk about his sister but in the end, he did take his files.
[47] The defendant agreed that CM was upset and angry when he first spoke to him and that he said to Mr. Sarrouh I know what you did. The defendant told him to calm down and stated nothing happened.
[48] Mr. Sarrouh denied knowing at that time that it was an allegation of sexual assault.
[49] CM said yes you did, he started shouting, he said ‘I will solve this man to man, or I will tell your wife and your son, or I will go to police because you have to pay for this’. He later said his business was worth $80,000.00 and that he would come on Monday to pick up a cheque.
[50] Mr. Sarrouh agreed that he has dealt with corporate lawyers and employment lawyers and that he has an understanding of the different areas of law. However, he denied knowing that instead of calling an employment lawyer he should have called police. Despite knowing that LM was not entitled to severance, or a bonus and that CM was blackmailing him, he still thought he should speak to an employment lawyer. Mr. Sarrouh maintained that because CM was asking for severance for his sister, he thought he should go to an employment lawyer.
[51] When CM returned on the Monday with his files, he was calm and not hostile. He agreed that on the Friday he was visibly angry. CM said, ‘you had to go to a lawyer”, Mr. Sarrouh replied that he is going to send something. He did not tell CM too much as he still had to meet with the lawyer and go through details and sign a retainer agreement.
[52] When the Crown put to him again that CM said you touched my sister on her breast, the defendant did not deny that CM said this. However, earlier he stated he did not know they were alleging a sexual assault.
[53] Despite knowing that he would not owe LM any money he still thought it was a good idea to speak to an employment lawyer.
[54] Mr. Sarrouh described CM demeaner as being calm when CM attended his office the second time. When asked why he thought CM was no longer angry, Mr. Sarrouh replied because he thought he was going to get money. However, one would think if CM realized that the defendant went to a lawyer and did not follow through with providing him with an $80,000.00 cheque, that CM would become angry again.
Analysis
[55] Turning now to assess the credibility and reliability of the witnesses.
[56] The versions of what occurred on the day in question are almost identical except for the moments in time when the alleged sexual assault occurred.
[57] Turning to LM’s evidence. I found her to be a credible and reliable witness. She gave straightforward answers. While the defence submitted that I should have concern about her evidence given she did not immediately leave Mr. Sarrouh’s office after the alleged sexual assault, I do not find that this detracts from her evidence in any way. Each victim of sexual assault reacts differently. This incident was shocking to her, and it occurred while she was in the middle of doing pressing work for the defendant at tax time.
[58] When I listened to and watched LM’s response to the defence theory that she had concocted this story to extort money from him, it was clear that she was genuinely confused and surprised. She very simply told counsel that she was not entitled to severance of any kind because she left her employment and gave Mr. Sarrouh three weeks’ notice. There were no inconsistencies in LM’s evidence, and I found that she recalled the events without difficulty.
[59] Similarly, I found CM to be a credible witness. Counsel submitted that I should not find him to be a credible witness because he denied receiving the text message from Mr. Sarrouh. Rather than out right denying he sent the message, CM, asked for proof that this was an authentic message. It is very possible given that he is not a person who is a texter that he did not see the message from the defendant, or he had forgotten he received it. While the text was sent on April 24 at 8:08, he had arrived at the defendant’s office around 9 am.
[60] I did not find that the text message in any way confirmed that CM had attempted to get money from the defendant. The text message, could also simply support the fact that Mr. Sarrouh was uneasy about CM coming to his office when he was already confronted by CM about sexually assaulting LM, and he was not comfortable being alone with CM.
[61] On CM’s first attendance at Mr. Sarrouh’s office on April 21, he is upset and angry and immediately confronts the defendant. Such a reaction would be consistent with him finding out that the defendant had sexually assaulted his sister. If this did not happen, there is no reason for him to be angry with the defendant who had helped him months earlier with his taxes.
[62] If CM did threaten Mr. Sarrouh, what he said to Mr. Sarrouh in no way detracts from what LM had told this court. It is possible that he was so upset with the defendant that he had threatened to tell his wife and son, and possibly ask for money. However, on hearing CM’s evidence I accept that he did not do this. He was equally surprised when counsel put to him that he was asking Mr. Sarrouh to pay his sister severance money in the amount of $80,000.00.
[63] There were no significant inconsistencies in Mr. Sarrouh’s evidence. However, I found his account of being extorted wanting. He said on the one hand he knew LM was not entitled to any severance and he knew what CM was doing was wrong, that is, trying to extort $80,000.00 from him, yet he chose to call an employment lawyer.
[64] Mr. Sarrouh’s evidence confirms all as well of LM’s evidence except for the sexual assault. He even confirmed that he said to LM when she was sitting in his office, “What do you want to do”. He confirmed that she continued to work after they met in his office and then never returned to his office or made contact with him again. Prior to the allegation, CM worked for him without incident for seven years.
[65] After a careful review of LM’s evidence, I am satisfied beyond a reasonable doubt that Mr. Sarrouh sexually assaulted her in the way she described. I have considered the defendant’s evidence in the context of the whole of the evidence, and it does not raise a reasonable doubt in my mind.
[66] As Doherty JA put it, speaking for the court in R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) held at para. 53:
"An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused's evidence as is the rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[67] The words of Justice Doherty describe most eloquently, the basis upon which I find Mr. Sarrouh guilty. After considering all of the evidence, for the reasons stated above, I accept beyond a reasonable doubt the evidence of LM. Although I have carefully considered Mr. Sarrouh’s evidence it did not leave me with a reasonable doubt and therefore, Mr. Sarrouh is found guilty of sexual assault.
Released: September 19, 2024 Signed: Justice A. R. Mackay