ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 192/11
DATE: 20130322
B E T W E E N:
HER MAJESTY THE QUEEN
KELLI FREW, for the Respondent/Crown
Respondent
- and -
PETER RACCO
ALAN D. GOLD and MELANIE WEBB, for the Appellant
Appellant
[On appeal from the conviction and sentence by the Honourable R. Zisman,
dated October 31, 2011 and April 13, 2012]
THIS JUDGMENT IS SUBJECT TO A PUBLICATION BAN REGARDING
THE NAME OF THE COMPLAINANT OR ANY INFORMATION
THAT MIGHT TEND TO IDENTIFY HER
AMENDED JUDGMENT
Corrected decision: The text of the original judgment was corrected on March 22, 2013 and the description of the sentences replaced in the corresponding paragraphs in the original judgment is as follows:
Para. 2: “ …Her Honour imposed a 60 day jail sentence and 24 months probation.”
Para. 73: “Her Honour imposed a 60 day term to be served in jail and 24 months probation.”
DURNO, J.
[1] The appellant and his wife, Josie, are real estate agents. The appellant’s wife hired J.K. to assist in running their office. On a Sunday evening, the appellant and J.K. met at a coffee shop and went to her apartment. J.K. said that while there the appellant grabbed her by the neck and stuck his tongue down her throat. While he was doing so, she felt his fingers “on top of her pants in her vaginal area.” She left the apartment. The appellant said that while looking at the apartment, J.K. grabbed him by the back of the neck and stuck her tongue down his throat. He told her that was inappropriate and left.
[2] The trial judge accepted J.K.’s evidence, finding e-mail and text communications before and after the visit to J.K.’s apartment supported her account. Her Honour rejected the appellant’s evidence, finding that in many areas it made no sense. The appellant was convicted of sexual assault with the trial judge finding he touched the complainant’s vagina under her pants. Her Honour imposed a 60 day jail sentence and 24 months probation.
[3] The appellant appeals contending the trial judge erred in approaching the case with the presumption the complainant was truthful instead of applying the presumption of innocence. While properly setting out the steps in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, he contends Her Honour failed to apply that analysis to her reasons, instead applying a presumption of guilt.
[4] In the alternative, the appellant appeals against the sentence submitting: the trial judge erred in her use of the Victim Impact Statement; in finding the offence involved a breach of trust by a person in a position of authority in relation to J.K.:, in finding that whether or not the touching was over or under the clothing would not affect the sentence; and that the sentence was harsh and excessive when other similar sentencing cases are considered.
[5] For the following reasons, the conviction appeal is dismissed and the sentence appeal allowed.
The Evidence
[6] The complainant, J.K., was a 29 year old separated mother with a 6 year old child. She was hired by the appellant’s wife in May, 2010, as an office manager for the Racco’s realty company. After being hired, J.K. met the appellant and described him as having a “very flirtatious personality.” Upon meeting J.K., the appellant said, “Oh wow, my wife hired a very attractive looking young woman.” While she initially thought little of the comments, they progressed with the appellant saying it was nice to have some “Joy in his life.” She began to feel uncomfortable. When she addressed the comments with him, he brushed them off. The comments included telling her he could “give her a good rim job” and that he wanted to get extra sound proofing for his office so that when she came around they could do stuff without anyone hearing. Once, he brushed her bottom with his hand. When she turned around, he said he was just adjusting her skirt for her.
[7] J.K. testified she would tell the appellant he had an absolutely beautiful wife and asked why he was talking to her as he did. He told her Josie was beautiful but that was about it. He just needed someone in his life when “you get up to the top here it’s, it’s very, you know cold and people don’t really know you.” He needed somebody.
[8] The appellant denied he made any inappropriate comments to J.K. at his office.
[9] J.K. was temporarily living at her office but became aware of a rental property that was available when she put a lock box on it in the course of her employment for the appellant. When he arranged for her to see it, she was very interested in leasing the property, wanting to offer $1,400 monthly instead of the $1,500 the landlord wanted.
[10] On Saturday, May 15, 2010, J.K. put in extra hours trying to organize the office. The offer to lease the apartment was signed by J.K. and witnessed by the appellant. When first shown the lease at trial, J.K. said she did not know whose signature witnessed hers, noting people had been asked to change (forge) signatures in the office but later, in cross-examination, said the appellant probably signed at the same time as she did. She then said she did not know if it was his signature or when he signed it.
[11] The appellant testified J.K. prepared the lease agreement. It was signed in the office on May 15 and witnessed at that time by the appellant. The agreement was to be presented to the landlord on Monday, May 17. However, by May 16 there were other people interested in the apartment, so he needed to discuss the current offer with J.K.
[12] On Sunday, May 16, 2010, J.K. was with her family at the beach when she exchanged a series of text message and phone calls with the appellant at the following times:
• 12:59 p.m. from the appellant to J.K: “… make sure u remember to flip over our blackberries –thx!!P&J”
• 1:31 p.m. from the appellant to J.K: “Can you call me on my cell plse –re rental of 286 st paul st”
• 1:32 p.m. one minute call from J.K. to the appellant.
• 1:33 p.m. 5 minute call from J.K. to the appellant. She testified the conversation related to the rental and how her day was going.
• 1:58 p.m. from the appellant to J.K: “Hey bb Its me again – sugar diddy.” J.K. said the appellant had never previously referred to her as “Baby” or to himself as “Sugar Daddy.” The references made her feel uncomfortable because the appellant was her employer. The appellant testified J.K. asked him to use the phrases so she would know it was him attempting to contact her because his number appeared as “Unknown caller” and she was not responding. He used the code to get her attention as she had not picked up his calls. While he did not understand her motive, he went along with it.
• 1:50 p.m. from the appellant to J.K: “Can u call back plse [phone number 1] ?”
• 2:02 p.m. 4 minute call from J.K. to the appellant. The complainant had no recollection about the content of this call although she recalled feeling uncomfortable.
• The appellant testified that during their early afternoon discussions, J.K. expressed concerns about whether she was emotionally ready to take on the apartment and believed she would not get the property without a co-signor.
• 3:24 p.m. from J.K. to the appellant: “Peter, I will be at my place in an hour if you want to talk.” The appellant testified he felt J.K. wanted to talk to him further about the offer. He felt they needed to have a face-to-face discussion about it.
• 3:37 p.m. from the appellant to J.K: “Hey bb! Justvout right now – will hook up later tonite – will call u when on route.”
• 6:07 p.m. from the appellant to J.K: “Do you prefer red or white?” The appellant and J.K. testified this reference was to his practice of buying clients a bottle of wine when they closed a real estate deal. However, J.K. said she did not know how to take the comment based on the appellant’s earlier references to “baby” and “sugardaddy.”
• 6:08 p.m. from J.K. to the appellant: “Your funny I like red … Are you coming by later I was just going to go to the gym?” J.K. testified she was not really going to the gym but did not know what was going on. She could not figure out why he wanted to come over so late to discuss the rental.
• 6:10 p.m. from the appellant to J.K: “yes – it will b a bit later on – so go ahead & I’ll txt u later”
• 6:11 p.m. from J.K. to the appellant: “Thanks”
• 7:04 p.m. from J.K. to the appellant: “Peter, this is very complicated I would like to set up a time during the day to talk. I am feeling uncomfortable.” The appellant testified he concluded J.K. felt uncomfortable going through with the lease, so he felt the face-to-face meeting was necessary.
• 8:03 p.m. from the appellant to J.K: “Hey what’s the worry? I am just gonna talk about it – i should drop by there in 15 min”
• 8:10 p.m. from J.K. to the appellant: “Sorry I’m at my mom’s, let’s do coffee tomorrow”. J.K. testified it was getting late but the appellant persisted in wanting to meet that evening. She suggested they meet at Starbuck’s.
• 8:12 p.m. from the appellant to J.K: “Can u call me on my cell plse”
• 8:12 p.m. 4 minute call from J.K. to the appellant. J.K. said the appellant was making light of the situation. She told him it was too late but he persisted in wanting to meet that evening. She did not feel comfortable meeting at her apartment, so suggested a coffee at Starbucks.
The May 16th Meeting
[13] J.K. testified she drove to Starbucks and met the appellant at roughly 8:35 p.m. The appellant was very lighthearted. When she raised his comments about her, asked if that was how he carries on and if he had such an open relationship, the appellant said he found her attractive and could not help himself. She told him it was not appropriate. He changed the topic to the rental and wanting to see her apartment so he could explain it to his client.
[14] J.K. did not want to go to her apartment with the appellant but agreed to do so because he pressured her, asking if she was a chicken. They walked back to her place although both had cars at Starbucks. Once at the apartment, they went upstairs where she showed him around. While showing him some things that she was going to bring up to par for building code, the appellant pulled her forward and put his tongue down her throat. She felt his fingers on top of her pants in her vaginal area and pushing her head. She did not remember anything else.
[15] They were at the table and she felt him “feeling areas” but that was all she could recall. She could not recall him saying anything before pulling her forward. Following a break to permit J.K. to compose herself at trial, she continued her testimony: “Peter put his tongue down my throat. I felt his fingers on top of my pants in my vaginal area and pushing my head. I don’t remember anything else.”
[16] J.K. said she left the apartment and recalled someone calling the appellant’s name while they were walking down the street. She had no recollection of seeing the appellant or any exchange of words with him. J.K. went to her mother’s and called Josie telling her she was quitting because she had another job. J.K. did not want Josie to know what the appellant had done.
[17] The appellant testified he discussed the rental with J.K. at Starbucks and she expressed uncertainty about the agreement. They did not discuss whether she could afford it, as she was expecting money from her separation. Her uncertainty related to whether she was emotionally in the right state of mind to make the decision. J.K. invited him back to her apartment, he did not suggest going there. She had previously mentioned the poor condition of her apartment compared to the one for which she had the offer prepared. He assumed she wanted him to see the state of repair of her current place.
[18] They walked to the apartment and once there, the appellant concluded her living conditions were dismal. While looking at one room, he turned around and J.K. grabbed him by the neck and kissed him, forcibly putting her tongue in his mouth. He pushed her away saying, “This is not a good idea” and that he was leaving. He left and walked back to his car with J.K. following a few steps behind him. She approached him and apologized. He told her not to worry about it, it was okay and “no big deal.”
[19] J.K. testified she wanted to quit her job and called Josie Racco telling her she was quitting because she had another job. She did not want to tell her what had happened.
Communications After the Meeting
[20] The following texts and phone calls occurred after the visit to J.K.’s apartment:
• 10:19 p.m. from the appellant to J.K: “What’s going on?? Plse call me asap!! Everything is ok plse call”
• 10:22 p.m. from the appellant to J.K: “This is serious – plse call – joise just told me that u r quitting??”
• 10:27 p.m. from J.K. to the appellant: “Everything is not ok peter, you fix it and tell josie something because I m not comfortable w your advances at all. I feel sorry for ur wife”
• 10:30 p.m. from J.K. to the appellant: “I said I have another job offer, pls just have my last weeks cheque at the office by 5. Thanks”
• 10:30-10:31 p.m. from the appellant to J.K: “OK – I am truly sorry for what I said and did – promise won’t ever happen again!! Plse come back to work – we have so much to do & help each other”. The appellant said J.K. instructed him to make it look like this was his fault in case his wife confronted her about the incident. She could say it was her fault and have a text from him confirming it. He testified J.K. wanted it for “deniability”, she wanted to know that if Josie were to say, she could say no, no Josie this is what Peter said to me. She wanted it on her text message”.
• 10:38 p.m. from the appellant to J.K: “Plse need to know u R. v. good with moving forward – going to get this rental for u - & no further interference & no one needs to know & no questions asked – plse confirm asap”
• 10:41 p.m. from J.K. to the appellant: “Fine, let her know I will be in tomorrow morning. I will explain I’m just stressed out to Josie, nothing said. I know this was an isolated incident”. J.K. testified she decided to return to work because she had no other job and no options. She would have had no job and no place to live. She thought that maybe it would not happen again.
• 10:44 p.m. from the appellant to J.K: “Thanks b god! – just one last thing resend your last msg – except delete the last sentence – thx p”. The appellant testified he did so, so that he could show his wife that he did nothing wrong.
• 10:45 p.m. from the appellant to J.K: “Told Josie u were a little overwhelmed by the back log of workload – josie is sick to her stomach that u thinking of leaving!! Plse stay on”
• 10:48 p.m. from the appellant to J.K: “Plse call josie asap from her cell – because she is now calling sue to see if she can get her to call & talk to u – god I such an idiot!”
• 10:54 p.m. from the appellant to J.K: “Josie really wants to just hear from u tonite – really she will b ok once u call back – she will not b mad at u – I’ve been talkin to her that u have been a little stressed over the rental and YOUR marital situation---“
• 10:55 p.m. from J.K. to the appellant: “Her number? The phone kicks in to answering machine”
• 10:57 p.m. from the appellant to J.K: “Call her cell [phone number 2].”
• 10:57 p.m. 4 minute call from J.K. to Josie Racco.
• 10:58 p.m. from the appellant to J.K: “She will call u back”
• 11:57 p.m. from the appellant to J.K: “Thx ! will talk tomorrow –p”
[21] The next day J.K. and the appellant met with the landlord and the offer was accepted. The appellant testified she was “overcome with emotion out of happiness.” At the office, the appellant said he would get Josie to write her a cheque for her rent for the new apartment. Josie later gave her a cheque for $3,000. The appellant denied ever talking to J.K. about the money, that it was “hush money” as J.K. alleged in her evidence or that he signed the cheque. When the lease was subsequently cancelled, the landlord kept one half for her trouble while J.K. kept the balance.
[22] J.K. denied she had edited any text messages. She had provided police with a May 17, 2010 text from her to Josie Racco that read:
Josie, think I will take u up on the keeping this weekend for myself, but pls tell sue she can all be on my cell if she needs anything. Just a little note though will usually try to come in Saturdays even for a bit till we are caught up …
[23] The complete version included the following after “… are caught up: U guys have done so much for me.. I feel its only right. Thanks, Joy”.
[24] When first confronted with the difference, J.K. said “the stuff underneath is not relevant.” She later said it was not intentional as it was at the bottom of the e-mail. She provided no explanation for how half of a line could be removed on the basis it was “not relevant.”
[25] In a second text to Josie Racco on May 17 at 7:25 p.m., J.K. wrote: “Joise, Thank you sooooooo much again!!! I have the cheques on order and everything ready for Angie. You guys are a true blessing.” J.K. testified she thought everything was going to be fine and it was going to stop at that point. The appellant made it clear Josie was never to know what had happened. In order to make sure that I was okay they put that place together for me. She did not have to worry about anything. J.K. thought everything was going to be fine and would stop at that point.
The May 25, 2010 text message
[26] J.K. sent the appellant the following text message:
Peter, I have given some thought to everything that has gone on and the way u act towards me when I’m at work and I feel extremely uncomfortable, I try to smile and pretend it does not bother me but it does and especially that Josie is such a great person and u still carry on this way. I have shown a lawyer the text message so someone knows your behaviour and I know date a police officer and these things are not taken lightly, I have a good case for sexual harassment if I choose to take this further with reco, or we can settle this out of court and you guys can pay me 4 months’ salary $8000 so I can find another job and now have to deal with this. Let me know so I can carry on with my life.
[27] The appellant never paid the $8,000. J.K. said she sent the message because she needed a place to live, had bills to pay and needed to move on with her life. She received a phone message from the appellant that inferred she should not make it harder on herself than it already was, that she was not the only one with connections, and that he had connections on the police force. J.K. said she asked for the money because she needed to be okay, she had no place to live, he was her employer, had sexually harassed her and sexually assaulted her. She did not know how she was going to continue. J.K. agreed that the effect of the message was she would file a complaint with the Real Estate Council of Ontario (RECO) or they could “settle out of court” for four months salary so she could find another job as it was embarrassing. Had she received the money she would have found a way to continue on, would not have gone to RICO and did not know if she would have gone to the police.
[28] On May 28, 2010, J.K. went to the police station with a package containing 31 pages of text messages, banking documents, medical records and her “running commentary.” She gave the police her laptop that was synced with her BlackBerry. She prepared such a well-organized package because she could not speak as a result of the emotional trauma of the incident. Her laptop was given to police so they could gather what information they needed and have access to whatever they needed as far as the papers she had given them.
[29] For the first time, in cross-examination, J.K. said the appellant had insinuated that he could come to her new apartment because he had a key. This had not been mentioned to the police in almost five hours of interviews over two days. Similarly, there was no reference to forging signatures at the appellant’s office in the police statement. When it was suggested she made up the allegations because she wanted the apartment so badly she said, “Not bad enough to cancel it. Because I did cancel it.”
[30] J.K. acknowledged that she had returned to an ice cream shop with her then common law partner to ask questions of prospective witnesses but denied she held her partner out to be a police officer.
[31] The appellant testified his post-meeting text messages were an attempt to cover up for his wife who he thought would read his messages. J.K. wanted protection from the appellant’s wife knowing J.K. was the aggressor at the apartment. Further, he did not want J.K. to quit her job as they were in a very bad position with nobody else to manage their office. He went along with J.K.’s request that he sent messages making it look like he was at fault and asked her to remove a reference to the “isolated incident” and re-send a message in case his wife saw it.
[32] Richard Ottaway testified he ran a fries and ice cream shop in downtown Burlington. Sometime in the end of April or early May, he recalled seeing a man he believed was the appellant walking with a woman, whom he thought was the appellant’s wife in front of his store. This is the route the appellant and J.K. took after they left J.K.’s apartment. They were walking casually together, side by side, at a normal pace. He called out the appellant’s first name, “Peter,” but received no response.
(Decision continues with the same wording and paragraph numbering as the original judgment through paragraphs [33] to [127], ending with the conclusion reproduced verbatim below.)
Conclusion
[126] The conviction appeal is dismissed.
[127] The sentence appeal is allowed and the appellant sentenced to a six month conditional sentence.
DURNO, J.
Released: March 22, 2013
COURT FILE NO.: 192/11
DATE: 20130322
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
PETER RACCO
Appellant
[On appeal from the conviction and sentence by the Honourable R. Zisman,
dated October 31, 2011 and April 13, 2012]
THIS JUDGMENT IS SUBJECT TO A PUBLICATION BAN REGARDING
THE NAME OF THE COMPLAINANT OR ANY INFORMATION
THAT MIGHT TEND TO IDENTIFY HER
AMENDED JUDGMENT
AS OF MARCH 22, 2013
DURNO, J.
Released: March 22, 2013