Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Reasons for Judgment
DATE: April 7, 2025
FILE NUMBER: 4810-998-23-48127400-00
COURT: Ontario Court of Justice
PARTIES: HIS MAJESTY THE KING v. ERIC OLIHA
BEFORE: Justice M. Block
LOCATION: Toronto, Ontario
APPEARANCES:
- L. Karademir, Counsel for the Crown
- E. Oliha, In Person
- I. Grant, Amicus
Oral Reasons by Justice Block
Mr. Eric Oliha stands charged with robbery times two, forcible confinement, sexual assault, and breach of probation.
I.C. was on vacation when she visited Toronto on September 31st, 2023. She and her friends were walking in the area of Queen and Spadina. They attended the local McDonald’s restaurant so that they could use the washroom. She testified that she entered the women’s washroom on the second floor through an unlocked door. As we will see, the washroom did not remain unlocked.
There were two stalls in that washroom situated side by side with a partition between them which had a gap at the bottom. Ms. C. thought that the washroom was unoccupied and unused when she entered it. She did note a strong odor of unwashed human but attributed it to the use of the facility by unhoused persons.
Ms. C. entered a stall, lowered her pants and sat down to urinate. Shortly afterwards, a man slid under the partition separating the washroom stall occupied by Ms. C. from the other washroom stall. That man proved to be Mr. Oliha, apparently the source of the odor Ms. C. earlier detected. Ms. C. screamed in surprise and fear as the defendant entered. She described being “frozen” in response to the man’s presence.
Mr. Oliha took control of her immediately and retained that control throughout their interaction in that tiny washroom stall. He took out a small glass pipe and smoked it. Ms. C. did not know what the substance was, but assumed from the odor and the erratic behaviour of the smoker that it was a contraband substance. He started off their interaction by asking her to partake in the pipe smoking, but Ms. C. declined.
Mr. Oliha spent approximately 15 to 20 minutes with the complainant in that washroom stall. He faced Ms. C. as she sat on the toilet, her genitalia were exposed for much of this time as she sat a few inches away from the defendant in the stall.
Ms. C. suggested to the intruder that her friends were worried about her and would doubtless come to her aide. Mr. Oliha repeatedly shushed her to prevent her alerting persons outside the washroom. Ms. C. attempted to use her phone to contact her friends; Mr. Oliha threw the phone in the toilet. Mr. Oliha did not just work at keeping Ms. C. under his control, he acted to complete her isolation.
Mr. Oliha used force to prevent Ms. C.’s attempts to exit but more often deflected or ignored her request to be allowed to leave or purported to bargain with her on the terms on which her exit would be permitted. Mr. Oliha repeatedly asked Ms. C. for a hug. He indicated that in exchange she would be permitted to leave; she declined. Several times the sharing of the defendant’s pipe was held out as the price of departure. As before, Ms. C. declined. On multiple occasions, the defendant said that her exit would be permitted if she simply spent five more minutes in his company.
At many points, Mr. Oliha asked Ms. C. to remove clothing as the price of departure. In her examination in-chief, she stated that she was unsure whether he asked her to remove her “clothes” or her “coat”.
It was clear that Mr. Oliha was in complete control of Ms. C.’s movements throughout this episode. At various points she attempted to rise from the toilet seat and leave. On one occasion, she was able to unlock the cubicle door, but Mr. Oliha maneuvered to maintain his position blocking the door and relatched it. On another occasion, he pushed Ms. C. down on the toilet as she attempted to leave. Another time Ms. C. attempted to knee the defendant in the crotch; this attempt had no effect. Mr. Oliha pushed Ms. C. back down on the toilet without difficulty. Ms. C. continued to call out to her friends while confined in the toilet stall. When she did so she was repeatedly shushed by Mr. Oliha. She told the Court that she was terrified by the experience. She believed that she would be sexually assaulted.
Ms. C. proved to be a remarkably fair, careful, and restrained witness. She was moderate in expression and quick to alert the Court when she was unsure of particular details. Her evidence was coherent, cogent, and detail rich. When describing the defendant’s physical restraint of her, Ms. C. was careful not to exaggerate the level of force used by Mr. Oliha. She made it clear that the defendant uttered no explicit threats and nor did he use gratuitous violence. She had a very minor injury to her finger that occurred during the encounter. She testified that the injury was in essence an accident that occurred during her confinement as opposed to something inflicted deliberately by the defendant.
During the encounter, Mr. Oliha asked Ms. C. if she had any cash. Understandably, she felt that she had no option; she gave him a debit card linked to an American bank and a retail gift card for a business associated with San Francisco.
Ms. C.’s confinement ended when restaurant staff broke down the door to the washroom; her repeated cries of distress had been heard by her friends and restaurant staff. They became concerned when the door to the washroom proved to have been locked. They called police and attempted to enter the washroom, and were ultimately successful, as we know. The defendant and the complainant were the only persons in that washroom when the door was forced by an employee.
The manager, Ms. Smith, testified that she attempted to access the washroom with a variety of keys in her possession. She was unsuccessful. She testified that the washroom could be locked by turning a lever on the inside but required a key to unlock it from the outside. As the washroom was locked when the complainant entered, the only reasonable conclusion based on the evidence is that Mr. Oliha locked the washroom door after she entered the stall.
After the door was forced, Mr. Oliha fled down the fire escape and was arrested a short distance away by the police. His image was recorded on the restaurant security video in the public areas of the McDonald’s and entered as evidence. On detention, he was in possession of Ms. C.’s debit and gift card.
Throughout this judgment, I referred to the man who confronted and confined Ms. C. in the McDonald’s washroom as the defendant, Mr. Oliha. As I’ve said, in his possession were the debit and gift cards given up under duress by Ms. C. shortly before.
During the early portion of his appearance in court before me, including before his arraignment, Mr. Oliha was disruptive; he shouted, interrupted, and resisted direction from the Court. He’d made admissions against interests that proved to have no basis in fact. I took these apparent admissions to be made in the spirit of disruption and not to be considered as statements of fact.
In unsworn comments made from the prisoner’s box, Mr. Oliha explained that the police had planted Ms. C.’s debit and gift cards on him after they detained him. As a result, I initially understood that the identity of the man in the washroom stall with Ms. C. was controversial. The identification of the perpetrator cannot reasonably be contested. Ms. Smith, the McDonald’s manager, identified the defendant as the man in the contemporaneous video of the breach of the washroom by the restaurant staff. As I’ve indicated, Mr. Oliha was captured in the immediate area of the restaurant by the police within a few minutes of the incident. His clothing and general appearance closely matched the image of the man in the video.
Mr. Oliha gave evidence, and it was bizarre in many respects. He originally claimed that the police sought to frame him. That comment emerged in his cross-examination of one of the police officers. He suggested during the testimony of that arresting police officer that Ms. C.’s debit and gift cards had been planted on him by the police. He told the Court that he went to the women’s washroom as he needed to use the facilities and the men’s washroom was unavailable. He claimed that he saw other men using that washroom, though that claim was not substantiated by contemporaneous video.
After entering the washroom, the defendant smelled smoke, in his testimony. He heard a bottle being dropped or placed on the floor presumably in the neighbouring stall. He there encountered a woman in the washroom stall whose pants were down, but she immediately pulled them up. He testified that he didn’t smoke in the washroom and never asked the woman for a hug or anything else including the removal of clothing.
In his testimony, the woman then went to the door of the washroom but could not exit. In his testimony, the door was “jammed”. She then “freaked out for no reason” though the defendant speculated that the woman felt threatened by the danger of rape from a man in the washroom, the women’s washroom.
The door was then broken down from the outside. Mr. Oliha testified that he picked Ms. C.’s debit and gift cards off the floor as he departed. He saw them on the floor and thought they might be his identification. The defendant said he was struck on exit by a broom wielded by Ms. C.’s boyfriend as he fled the restaurant.
Mr. Oliha claimed that the police “shot up” the washroom shortly after his departure. He speculated that this fusillade was based on police suspicion that the suspect was still in the washroom. There was no evidence to support this bizarre claim, and no witnesses were cross-examined on it.
After a short time under cross-examination, Mr. Oliha refused to answer questions of Crown counsel. His attitude towards the proceeding was then and frequently combative and disruptive. I reject his evidence in its entirety.
It is clear that Ms. C. was terrified by the encounter. She was particularly concerned that she might be sexually assaulted; she was trapped in a small cubicle. She is a very small woman, barely five feet tall, perhaps as much as 100 pounds in weight. Mr. Oliha’s a large, robust man; he appeared to me to be approximately six feet tall and about 200 pounds in weight.
Of course, the terror felt by Ms. C. does not constitute the mens rea that the Crown must establish beyond reasonable doubt to prove the charges against the defendant. But it must be clear that this was an inescapable conclusion drawn from her prolonged confinement by the defendant in circumstances which, short of complete nudity, her sexual integrity could not have been more vulnerable. On this narrative, Ms. C. was most certainly forcibly confined.
Mr. Oliha’s inquiry as to whether the complainant had any cash was, in these circumstances, a demand backed up by total control of this young woman’s movement by a vastly larger man. She clearly demonstrated she had felt she had no choice but to comply. The situation created by the defendant created no other rational choice. Her fear of sexual assault was based on that reality.
Mr. Oliha chose to control Ms. C.’s movements from the moment he locked the washroom door. He found her in a cubicle in a state you would expect to find a woman using the toilet, in that her private parts were exposed. He deliberately prolonged her position of acute vulnerability. The message that the defendant was interested in exploiting Ms. C.’s confinement and compromised integrity, physical and sexual, was reenforced by the repeated suggestion that the two have a hug and that she remove her clothes or coat.
As we know as the trial unfolded, the defendant conceded he was the man in the women’s washroom when the woman “freaked out”. The focus of Mr. Oliha’s submissions were that the facts alleged by Ms. C. did not amount to a sexual assault as there was no explicit threat or sexual touching. This submission was also the core of the succinct submissions made by Ms. Ingrid Grant, amicus appointed prior to trial.
The words of the Court of Appeal in R. v. Edgar, 2016 ONCA 120 at paragraph 10 are apposite:
To commit a sexual assault, it was not necessary for the defendant to touch or even verbally threaten the complainant. The person’s act or gesture without words, force, or any physical contact can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts a person’s sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault.
Confining a person in a small, enclosed space isn’t by itself a sexual assault, but deliberately confining her under complete physical control for a prolonged period when her sexual vulnerability is obvious, is another matter. The defendant certainly intentionally acted to confine Ms. C. for a prolonged period; she was confined in a position of degrading vulnerability. The defendant repeatedly emphasized that her situation was completely under his control. That control did not require an explicit threat to successfully deprive Ms. C. of her financial instruments and exposed on a toilet under his scrutiny and control her sexual integrity was most certainly affronted and his ability to carry out the implied threat of sexual assault manifest. I find that this charge has been made out.
The robbery in count three is made out. I dismiss the robbery which is contemplated in count four.
The probation documents establishing Mr. Oliha’s status as under probation at the time of this incident has been tendered and that count is made out.
The forcible confinement is obvious, and the Crown has satisfied its burden in relation to the four counts in which I make a finding a guilt.
. . .PORTION OF PROCEEDING NOT ORDERED TRANSCRIBED
. . .WHEREAS THIS MATTER WAS ADJOURNED