ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-473
DATE: 2012/02/ 03
B E T W E E N:
HER MAJESTY THE QUEEN
Elizabeth Ives-Ruyter, for Her Majesty the Queen
- and -
ROBERT BRIAN THOMPSON
Dennis Fenton, for the Defendant
Defendant
HEARD: January 31, February 1, 2 & 3, 2012
DECISION
James, J.—(Orally)
[ 1 ] The accused is charged that he sexually assaulted the complainant in July, 2006. The complainant testified that she and the accused were co-workers employed by the Canadian Food Inspection Agency. She was training to replace the accused in his position as a plant protection inspector when he retired. She said that on a crop inspection trip that summer, they spent the night at a rural property owned by the accused. They stayed at his farm because of a lack of alternate accommodation in the area. After a long work day, they had several drinks together during the course of the evening. The complainant testified that she has no recollection of events past the point where she was getting ready to take a bath at around 10 pm. She awoke the next day naked in the bed of the accused. She felt she had been drugged and violated against her will. She said there was semen in her vagina. She was groggy and distraught. She confronted the accused with her suspicions and left to return home.
[ 2 ] The accused testified in defence of these allegations. He denied having drugged the complainant; he denied that they had intercourse and he denied that the complainant was distraught and confrontational the next day when she awoke. His version of events is that the complainant entered his bedroom naked during the night after he had gone to bed alone. He said they both had consumed much more alcohol than the 3 or 4 drinks the complainant testified to. He said they had a consensual sexual encounter that was initiated by the complainant.
[ 3 ] For the reasons that follow, I have determined that the accused should be found not guilty.
[ 4 ] The complainant is now 53 years of age. She has 3 grown children. At the relevant time she was married but it appears there were difficulties in the relationship. The complainant was employed with the Agency starting in 2001. In 2004, while working for the agency in southern Ontario, the complainant was awarded a position as a plant protection inspector working out of the North Bay office. Initially her employment was on a temporary basis for about 3 months to assist the accused who was recovering from a heart attack. He was older and much more experienced in the work of a plant protection inspector than the complainant. At the end of the season, she returned to her workplace in southern Ontario. The following spring she won a competition for a permanent position with the Agency in the North Bay office to carry on with the same work she had performed the year before.
[ 5 ] The complainant and the accused worked closely together. They would make numerous trips during the summer to inspect crops over a large part of northern Ontario. These trips often required overnight stays. In addition, they travelled together to attend training sessions in various localities with other inspectors employed by the Agency. While at a training session in 2005, the complainant was visited by Cassandra Anderson, a long time friend who was also employed by the Agency. Ms. Anderson visited with the complainant in the complainant’s motel room. The accused was present and they were having a drink together. Ms. Anderson testified that she observed the accused paying undue attention to the complainant in a manner that she described as creepy. She was sufficiently concerned that she took the complainant aside when she was leaving to warn her to watch out for the accused as he had been leering at the complainant during their visit. The complainant was dismissive of her friend’s concerns.
[ 6 ] The complainant testified that after they had been working together for a while, the accused started making inappropriate sexual comments. This usually occurred when they were working together in isolated surroundings. He asked her personal questions about her relationship with her husband. He told her that he had engaged in extra-marital relations. Sometimes he threw burrs at her breasts and buttocks. He invited her to his motel room when they were staying out of town. He said he would rather have sex with her than train her. She said she was not interested in him in a sexual way and told him so. She told him that she didn’t want to mix work life with her personal life.
[ 7 ] In July, 2006 they had occasion to spend a week performing crop inspections in Renfrew County. One of the locations was near Palmer Rapids. The accused owned an old family farm in the area. There was no electricity or running water. When employees of the Agency stayed at a private home for work purposes, they received an allowance of $50 dollars. As there were no motels close by, the complainant agreed to stay with the accused at the farm. She had stayed there in the past without incident. There was a large living area that contained beds or cots at one end. This is where the complainant slept. There was also a separate bedroom where the accused slept. The first part of the week passed uneventfully but on the Thursday evening of that week, the complainant says she was drugged and sexually assaulted.
[ 8 ] She said they finished work that day in the early evening. They picked up some takeout food and ate at the farm. The accused prepared a rum and coke for each of them, the first of a few drinks, maybe 3 or 4, that she says she had that evening. The first one was very strong, like a double. She told him it was too strong. They talked and the complainant did some paperwork. The complainant began heating water to have a sponge bath. She heated kettles of water on the stove and was in the process of filling a large container in the bathroom. The last thing she remembers is getting ready to wash her hair at about 10 o’clock. She has no recollection of anything thereafter until she awoke the next day in the early afternoon. When she awoke, she was lying alone and naked on the bed in the bedroom of the accused. She felt groggy but in a way that was different from a hangover. She discovered semen in her vagina. There was a hickey-like bruise on one of her breasts. She was immediately alarmed. She had the sense of having been violated. Her vaginal area felt sore. She was not in the habit of sleeping without at least some clothing. As an early riser, it was very unusual that she had slept so late.
[ 9 ] The accused wasn’t there. He left a note advising the complainant to get something to eat and that he would be back. She packed her things and loaded her truck. She was feeling shaky. She was smoking a cigarette on the porch when the accused returned. She immediately accused him of drugging her which he denied. He said she had enjoyed herself. She left to go home where she had a bath, shower and used a vaginal douche. On the way home she called her friend Cassandra Anderson. Ms. Anderson corroborated that she had received a call from the complainant. She said that the complainant seemed stunned and uncommunicative; it was hard to follow what she was saying but the complainant recounted the details of the incident. Ms. Anderson testified that she suggested that the complainant should go to a police station or the hospital but the complainant didn’t want to. She said the complainant was concerned about her family and said if they knew what had happened, her husband and son “would kill him”. In answer to a question about why she didn’t seek medical attention, the complainant said she didn’t have a family doctor at the time. She didn’t say why she didn’t go to the emergency department or a medical clinic. It never occurred to her to ask for a drug test.
[ 10 ] The complainant said the accused had access to powerful drugs from his days as a pharmaceutical representative although this was 20 years before. He also assisted the Agency’s veterinarians in tranquilizing and euthanizing large animals although the Agency had ceased providing this service some time ago. She said he claimed to have stockpiled a large quantity of drugs. She testified to her belief that he kept some of these drugs at the farm.
[ 11 ] Ms. Anderson and the complainant spoke again several times in the following weeks and months. Ms. Anderson said she observed that the complainant started into a downward spiral. Her drinking increased and all their conversations led back to what had happened at the farm. She thought the complainant should file a complaint at work regarding the incident. She encouraged the complainant to make a report but the complainant refused. Ms. Anderson said that she raised the matter with Cathy Werstuk, a senior manager in the Barrie office that had responsibility for the North Bay office. She did not tell Ms. Werstuk all the details but said a serious incident had occurred, possibly involving criminal activity, that related to the complainant. She said she urged Ms. Werstuk to make inquiries of the complainant but no management action was taken. For her part, Ms. Werstuk said she did not recollect this call from Ms. Anderson and said that generally, while there is a sexual harassment procedure in place, if the victim doesn’t come forward and go on the record, there is nothing management can act on. Ms. Werstuk said she was not made aware of the allegations that the complainant had been sexually assaulted by the accused until July, 2009. By this time the chain of command had changed and she viewed the claim as an historical event whereas the harassment policy was intended to respond to current issues and problems.
[ 12 ] The complainant testified that she was concerned about her job with the Agency. While she sought to avoid the accused as much as she could, they still worked together after July, 2006. They conducted crop inspections that involved overnight trips and on a few occasions stayed at the same farm where the attack had occurred. She acknowledged that she may have stayed at the farm with the accused in both 2007 and 2008, maybe three times in all. On those occasions she said she was prepared. In addition to not drinking with the accused after work, she travelled with bear spray and a knife in order to fend off another attack. Under cross examination she acknowledged there were several communities within commuting distance of where they were working that had commercial accommodation. She said that sometimes they only had one vehicle to travel in and discounted the need to stay overnight in a motel now that she was prepared for the possibility of another sexual assault.
[ 13 ] It appears that in the period following July, 2006 the complainant conducted herself in the workplace as though nothing had happened. She attended Christmas parties where the accused was present. She attended his retirement party in 2008 and acknowledged that she was not compelled to do so. The complainant said it would have been noticed and commented upon if she had not attended.
[ 14 ] In 2008 the complainant and the accused were travelling together to perform crop inspections in the Kapuskasing area. During a stop in Temagami, the complainant bought a lottery ticket that turned out to be a $100,000 prize winner. She gave the accused $1,000 of her winnings. She said she was supposed to get a large quantity of cedar posts from the accused for the money but it was apparent to me that there was an element of gift to the payment.
[ 15 ] At an unauthorized Christmas party at the office after a Christmas luncheon in 2007 the complainant was arrested on the way home on an over 80 charge due to the consumption of alcohol. This led to a complicated and ultimately unsatisfactory series of grievances, some aspects of which are still underway. The complainant has been receiving long term disability payments for approximately 16 months. Considerable evidence was adduced as to which complaints were advanced at different points in time, which supervisors were involved with which grievances and when allegations of sexual harassment were made known. It is clear that in addition to requests to be accommodated for the loss of her driver’s license, the complainant reported to her supervisor in the North Bay office, Dr. Ian Ruddell, that she felt that the training she was receiving was inadequate. She said she also told Ruddell that the accused had said he would rather have sex with her than train her but this was denied by Ruddell. In the Crown’s submission, there was evidence that the Agency was a male-dominated establishment, that the complainant’s career at the Agency was dependent upon the goodwill of the accused who was well entrenched in the local hierarchy, and that management ignored her legitimate complaints. This contention was supported in part by her union steward and past union president, William Millar. However, even if all this is true, it is of limited assistance to me in determining what transpired on the night of July 6, 2006.
[ 16 ] In addition to supporting the complainant’s version of her workplace issues, Mr. Millar testified that at a Christmas party subsequent to 2006, not the same party where the complainant was arrested driving home, the accused appeared to be showing an undue amount of interest towards the complainant and she kept re-locating herself away from the accused.
[ 17 ] The accused testified that he got along well with the complainant. They would travel together for work purposes without any problems. She stayed at the farm with him both before and after July, 2006. On the evening in question he said they had worked a long day and returned to the farm at about 8 in the evening. It was a Thursday and they had finished their work for the week. All that was left was to travel home the next day. They had several drinks together and talked long into the night. He said he was intoxicated when he went to bed at around 2 or 2:30 in the morning. Both the complainant and the accused consumed a large quantity of alcohol. The complainant decided to have a sponge bath and wash her hair around the time he went to bed. He said that he had some concern about the complainant’s ability to heat water for her bath. Sometime later the complainant came into his room without any clothes on and got into his bed. She performed fellatio on him. At some point he ceased to have an erection. He denied having intercourse. They went to sleep. He rose early in the morning and cleaned up the mess from the night before. He commented that the complainant had left her things in a state of disorder from her late night bath. He went for a walk. He felt embarrassed about the events from the previous night. He wanted to maintain a working relationship with the complainant. When he returned he did some yard chores and went to check on a beaver dam nearby. By this time the complainant was up and having a cigarette. She asked him if he had drugged her. He said nothing happened; don’t worry about it. He said his impression was that she had no recollection of what had transpired. She offered to help him with the packing up. He said they seemed to be on good terms when the complainant left to travel home.
[ 18 ] They continued to work together and get along until he retired in 2008. They went on training courses together with other Agency inspectors. In addition to the sum of $1,000 she gave him several small gifts after 2006 including a plant when he retired. He said the complainant called him after she was arrested in December, 2007. His first knowledge of the sexual assault allegations against him was in 2009 when he was contacted by the police.
[ 19 ] In a case such as this where the assessment of credibility plays an important role in the fact finding process, it is important to remember that the accused comes before the court with the benefit of the presumption of innocence. This means that he is entitled to be found not guilty of the offence with which he has been charged unless I am satisfied of his guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a high standard to meet. It is much more than possible guilt. It is more than probable guilt. Even if I was convinced that the accused was probably guilty, the law requires me to find that he is not guilty of criminal wrongdoing.
[ 20 ] There are elements of the testimony of the accused that warrant careful consideration. The Crown has identified a list of facts from the night of July 6, 2006 that the accused had difficulty recalling yet he did not seem to have any difficulty recalling his interactions with the complainant and what he did the following morning after he got up. It is puzzling to me that he went to bed while at the same time professing a concern that the complainant was at risk of scalding herself with hot water, or worse that she may set the farm on fire in her inebriated state. Also troubling is the contention that he and the complainant drank alcohol steadily from about 8 in the evening until 2 or 3 in the morning after a long workday of inspecting crops in hot weather.
[ 21 ] There are also several instances where the testimony of the complainant raises credibility and reliability concerns. The most obvious concern is that the complainant has no recollection of what actually happened. She cannot say how she came to be naked in the bedroom of the accused. She acknowledges having consumed more than a small quantity of alcohol. While she is firmly of the view that she was drugged, this evidence is not reliable. No tests were taken and no drugs were seen to be present. There is nothing to corroborate her firm and apparently sincere belief that she was drugged. The evidence of the accused possessing such drugs from his days as a drug salesman 20 years before or from assisting vets in treating animals is tenuous and entirely circumstantial.
[ 22 ] There is evidence of a recent complaint in the phone call to Cassandra Anderson. Ms. Anderson urged the complainant to seek medical attention or contact the police. It is understandable that the complainant would be reluctant to do so and the factors contributing to this reluctance were identified by the complainant. They include embarrassment, and the fact that reporting would create family complications, perhaps for both of them. She also said she was concerned about her job but the persuasiveness of this point is tempered by the fact that she worked for a government agency that had an established policy to deal with sexual harassment. Several witnesses underscored the point that if the complainant had come forward and reported harassment by the accused, there were procedures and mechanisms available to protect her. Ultimately, however, on the issue of failure to promptly report a sexual assault, there are many valid reasons why victims of sexual assault are slow to report that crimes have been committed against them and some of those reasons are present in this case. Delay in reporting, in and of itself, is often insufficient to create a reasonable doubt.
[ 23 ] I think it is very significant that the complainant returned to the farm and stayed there overnight with the accused after she says he sexually assaulted her. Even if she believed she had to continue working with the accused in order to protect her job, it seems reasonable to me that she would have sought out ways of avoiding the necessity of staying there.
[ 24 ] The credibility of the accused is also compromised by the fact that she was willing to give the accused $1,000 of her lottery winnings. It is difficult to accept that she would have volunteered such a payment to the man who had drugged and sexually assaulted her. I do not accept that this payment was solely for the purchase of cedar posts. In cross examination the complainant commented that if the cross examiner was driving the car she was in when she happened to win $100,000, she would likely give him a $1,000 as well.
[ 25 ] Also contributing to a finding of reasonable doubt is the fact that the complainant attended the retirement party for the accused and as well, apparently willingly, stayed at the office and drank with her colleagues, the old boys club as it was referred to, including the accused, after a Christmas luncheon in circumstances where the consumption of alcohol on office premises was prohibited.
[ 26 ] In her submissions, Ms. Ives-Ruyter took issue with the fact that the defence failed to review with the complainant the evidence to be given by the accused in order to give the complainant an opportunity to dispute his contentions contrary to the rule in Browne v. Dunne . In particular her concern was that the complainant was not given a chance to dispute the suggestion that she performed fellatio on the night in question. The defence response, with some justification, is that since the complainant professed a complete lack of knowledge of what transpired, what purpose would be served by giving her an opportunity to comment. Even if I accept that the complainant would have vigorously disputed this suggestion, which I am prepared to do, this assumption does not overcome the credibility issues I have identified.
[ 27 ] In summary, having considered all of the evidence, I am unable to conclude where the truth lies as to what happened in the farmhouse on the night of July 6 th , 2006. Having heard the witnesses and considered their testimony, I am left with sufficient doubt as to the guilt of the accused that I find he is not guilty of the crime with which he has been charged.
Mr. Justice Martin James
DATE RELEASED: February 3, 2012
COURT FILE NO.: 10-473
DATE: 2012/02/03
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – ROBERT BRIAN THOMPSON Defendant DECISION Mr. Justice Martin James
DATE RELEASED: February 3, 2012