HER MAJESTY THE QUEEN – and – A.N.

COURT FILE NO.: 343 / 12

DATE: 2013-09-06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.N.

Respondent

Counsel: Philip Zylberberg and Karen Pritchard, for the Crown David Humphrey and Glenn Sandberg, for the Respondent

HEARD: June 24, 25, 26, 27 and 28, 2013

ORALLY RELEASED: August 9, 2013

REASONS FOR JUDGMENT

Hennessy J.:

[1] A.N. was charged with one count of sexual assault on M.H. between July 5, 2008 and May 5, 2009.

[2] M.H. was an employee of A.N., a physician who operated a medical clinic in Northern Ontario. She had recently completed a course as a medical office administrator when she began to work at the clinic in June 2008. M.H. was 30 years old during the eleven month period in which she worked for A.N..

[3] The prosecution alleges at least ten separate incidents of sexual assault during the period covered by the indictment. The prosecution argues that a finding that any of these incidents constitute a sexual assault is enough for a conviction. The alleged incidents include touching above the clothes, and attempts at kisses, all of which are alleged to have taken place within the workplace.

[4] At the time the complainant worked for A.N., he was 43 years old. He is married with two teenage children. He graduated as a medical doctor in 1993 in Cameroon and came to Canada shortly afterward. He secured an internship in 2001, completed his residency from 2002 through to 2004 and started his general practice in family medicine immediately afterward.

[5] He continues to practice in his medical clinic where he has both walk in and regular patients.

[6] At the outset of his testimony, A.N. acknowledged that while in a relationship of authority over the complainant, he persistently sexually propositioned her, knowing that this conduct was unwelcome and upsetting to her. I refer to this course of conduct as sexual harassment, [see para. 56 in Janzen v Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, where the court adopts a definition of sexual harassment]. Based on the complainant’s evidence, A.N. first asked her if she would have sex with him at the end of her first day on the job. A.N. testified that he didn’t proposition M.H. until sometime in her first week on the job, but not on the first day. A.N. admits that M.H. clearly rejected his first and repeated propositions and that she also let him know that these propositions were upsetting to her. She told him that she did not like the idea of the proposition, that she had a boyfriend and she reminded him that she believed that adultery was contrary to the Commandments. A.N. would often make his propositions with declaration of love for the complainant or compliments on her beauty. Often when the complainant responded negatively to his proposition, A.N. would tell her to think about it or that she was making a mistake. By his own admission, A.N. propositioned M.H. many times over the entire course of her employment.

[7] A.N. also acknowledges that he was a very demanding employer and impatient with his staff. He admitted that he often yelled at his two office staff, in front of each other and that he called both of them stupid on many occasions. He acknowledged that the complainant would often go off into a room by herself and cry after he yelled at her and called her stupid. A.N. testified that the complainant had told him more than once that she found his conduct to be demeaning and dehumanizing.

[8] When asked why he continued to proposition M.H. to have sex, when he knew that she didn’t want to, that she didn’t like the propositions and that she found them upsetting, A.N. responded that he wondered if she was being coy or whether she had really wanted to say “no”.

[9] Although the accused admitted what his counsel argued was conduct that would attract professional discipline, A.N. denied ever touching the complainant as alleged in this proceeding.

Elements of the Offence

[10] It is useful to review the elements of the offence of sexual assault in order to distinguish the offence from sexual harassment, which is neither a criminal offence nor an independent civil wrong. It is also important to distinguish the criminal offence of sexual assault from the other behaviors, because the narrative as presented through the Crown witnesses placed the alleged sexual assaults within a generalized workplace environment of sexual harassment.

[11] A sexual assault is an assault within any one of the definitions of the concept of an assault in s. 265(1) of the Criminal Code of Canada which is committed in the circumstances of a sexual nature, such that the sexual integrity of the victim is violated. (R. v Chase, [1987] 2 S.C.R. 293, para. 11)

[12] An assault is the intentional application of force to another person, directly or indirectly, without that person’s consent: s. 265(1)(a).

[13] The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” (Chase at para. 11)

[14] Whether the circumstances of the assault were of a sexual nature is determined by a review of all of the circumstances surrounding the conduct including, among other considerations:

• the part of the body touched;
• the words or gestures accompanying the act;
• the nature of the contact;
• the situation in which the contact occurred;
• the intent or purpose of the assault;
• the motive of the accused, especially whether it was sexual gratification; and
• all other circumstances surrounding the conduct.

[15] Consent is defined as the voluntary agreement to engage in the particular sexual activity: s. 273.1(1). In the case of a common assault, consent is vitiated where the perpetrator is in a position of authority over the complainant. There is no issue of consent in this case.

[16] Sexual assault is a crime of general intent. The Crown need only prove that the accused intended to touch the complainant.

Allegations of the Complainant

[17] I will review here the allegations of touching and attempts at kissing made by the complainant, all of which have been denied by the accused. During her testimony, the complainant refreshed her memory by reference to journal entries that she had made at the time, or to a summary of those entries which she had prepared for the police. The complainant described ten separate incidents of touching over nine different days.

July 8, 2008

[18] The complainant testified that A.N. got down on his knees, kissed her running shoes and said he loved her. He pulled her head towards him and tried to kiss her, then he brought her head in close to his face.

July 23, 2008

[19] M.H. testified that A.N. walked past her while she was standing with a co-worker and that he brushed against her breasts. She agreed that it was possible that it was an accident but she didn’t think so. Her co-worker testified that she did not see this incident.

[20] A.N. specifically denied ever brushing past the complainant and brushing against her breasts.

July 28, 2008

[21] M.H. testified that while alone with A.N. in an examination room, he tried to kiss her, and when she pulled away from him he grabbed her arm and pushed her out of the room.

July 29, 2008

[22] M.H. testified that while in A.N.’s office, he put his hand on the trouser of her “scrubs” and tried to pull them down. A.N. was sitting at his desk in his office.

July 31, 2008

[23] The complainant testified that A.N. tried to kiss her

October 10, 2008

[24] The complainant testified that while she was in an examination room with a patient, A.N. entered the room and tapped her on the behind at the same time as he asked, or told the complainant to get his lunch order.

[25] The complainant testified that a young adult female patient was present during this incident. Originally this patient told the complainant that she would speak to the police about it, but at trial denied that it could have happened in her presence.

[26] A.N. specifically denied this allegation.

October 15, 2008

[27] The complainant testified that while A.N. was reprimanding her in his office, he tapped her five times on the backside. When she told him not to touch her, that she didn’t like to be touched by him, A.N. told her that she had better get over it.

April 2, 2009

[28] The complainant testified that she had a journal entry describing an incident on this date when A.N. tried to touch her breasts. She reminded him that she had a boyfriend and that her boyfriend would intervene. The complainant had no current recollection of this incident at trial; she simply read her journal entry.

May 5, 2009

[29] The complainant testified that she was in an examination room with a senior male patient when A.N. entered the room and rubbed his groin against her thigh.

[30] Later in the afternoon of the same day, the complainant testified that A.N. put his hand in her rear pocket of her scrub pants. This incident is alleged to have occurred in an examination room in the presence of an adult patient and a child.

Credibility Assessment of A.N.

[31] On all of the non-controversial matters, A.N.’s evidence was consistent with the evidence of the complainant and the complainant’s co-worker. With respect to the office and staff routine, the fact that the complainant’s boyfriend visited the office and that he had meetings with the complainant post her employment, the evidence from all three was essentially the same. The conflicts in evidence between A.N. and other witnesses arose in the following areas:

• Encounter with G.B. in May 2009;
• May 8, 2009 meeting with the complainant at the office;
• September 10, 2009 meeting with the complainant at the office; and
• The alleged incidents of touching.

[32] G.B. was the boyfriend of the complainant during the time she worked at the clinic. He recounted a short visit he made to the clinic in early May 2009. This visit followed the events of May 5th where the complainant alleged two incidents of touching. G.B.’s evidence was that the complainant had come home from work crying and upset. On May 8th, he decided to go into the clinic and have a word with the doctor; he was angry. When A.N. approached, G.B. put out his hand to shake hands with A.N.. G.B. is a fit and well-built young man. He pulled A.N. in close and using colloquial terms and a firm voice said something like, “if you ever rub your groin against my girlfriend again, I will come and punch you in the head”. G.B. said that A.N. looked at him with frightened eyes. He testified that having said that, he turned around and left. He did not recall that A.N. responded to this utterance.

[33] Ms. Roach, the co-worker testified about the encounter. She could not recall exactly when it happened but she did recall that G.B. spoke to A.N. in a loud and threatening tone. She did not recall the exact words used by G.B. but she recalled that the message was along the lines of: “she told you not to touch her, so don’t touch her or I’m going to rip your head off”.

[34] A.N.’s evidence on the encounter pointedly does not make any reference to remarks about touching. He recalled the incident as a short confrontation where G.B. extended his hand for a handshake and then pulled him in close and in an aggressive and threatening manner and said that if he, A.N., made the complainant upset again he would punch him in the head. A.N. testified that he then asked the complainant into his office to explain what the boyfriend had meant and he recalled that the complainant said to him “G.B. is just angry, you shouldn’t worry about it”.

[35] The three descriptions of this encounter are similar but for the words about touching and the complainant’s supposed assurance to A.N. that he shouldn’t worry. Where the evidence between A.N. and the other witnesses differ on this incident, I reject the evidence of A.N..

[36] Dealing first with the evidence of A.N. that the complainant told him not to worry about G.B.’s threat; this is completely implausible. This confrontation took place days after the groin rubbing incident and days before the complainant called in and quit. A.N. admits how upset the complainant was when she called in and quit. He testified that she told him she was under medical care for stress. If it is uncontradicted that M.H. was upset with what was going on in the office, why would she tell A.N. not to worry about the threat her boyfriend had made. This is completely illogical.

[37] G.B. did not mince words in his testimony. It would appear that he did not mince words when he was angry and being protective of his girlfriend. A.N. describes the encounter as aggressive and threatening. If G.B. had heard from his girlfriend that A.N. had rubbed his groin against her leg, why would he bother to come into the office and begin his threat with “if you upset Maggie again”? G.B. admits saying that he ended his comment with “I’ll punch you in the head”. Those are the exact words recalled by A.N.. There is no reason for G.B. to revert to euphuisms when identifying the type of conduct that would trigger this assault. He testified that he was doing what any man would do.

[38] I am persuaded by the all of the evidence on this point that G.B.’s words to A.N. referenced rubbing his groin on the complainant’s leg and nothing short of that. This is something A.N. would have remembered

[39] A few days after the complainant had quit her job, she and G.B. came into the office to speak to A.N.. The complainant’s co-worker recalled that the complainant and G.B. showed up one day and the co-worker escorted the two of them to A.N.’s office. The co-worker could not recall the exact configuration of the three individuals but she thought that A.N. and the complainant were sitting in the office and that G.B. was standing close by but not within the office proper. The co-worker testified that the complainant did the talking and asked repeatedly why A.N. had touched her. A.N. did not answer or acknowledge the question but finally said “I am sorry”. The co-worker said that A.N. did not look nervous and when the two left, he went back to his patients.

[40] A.N.’s evidence on this meeting differs on one key point: what the complainant said to him, (i.e., whether she asked why he touched her). A.N. denied that the complainant asked this question. A.N. recalled that the meeting was a discussion in the hallway, that he asked the co-worker to come and be a witness but that the other two did not want her to stay. He also testified that the complainant and the boyfriend refused to come into his office, they insisted on speaking to him in the corridor. A.N. testified that the complainant was pressing him for an answer and that the boyfriend was close to him, within his personal space and was frightening him. A.N. stated that the complainant repeated over and over again the words: “You’ll pay for your sins. You damaged my life” but that she refused to explain what she meant. A.N. stated that he was afraid for his life. However, A.N. also testified that the complainant was saying things that were untrue, that she was making wild allegations and that she was pressing him for an answer. When asked what untrue allegations she was making or what question she wanted answered, A.N. could not answer; he obfuscated and avoided the question.

[41] I find that A.N.’s evidence that the complainant was pressing for an answer, and making untrue allegations is more consistent with the evidence of the co-worker that the complainant asked repeatedly: “Why did you touch me?” A.N. would not admit that the complainant asked this question, even though the balance of his evidence on this point is consistent with that question having been asked and is inconsistent with his own evidence of what the complainant said. A.N. agreed that the exchange ended when he said he was sorry.

[42] With respect to the allegations of touching, A.N. denies them all with the same vigour. He even denies those alleged incidents which an ordinary person would never be able to recall and for which he would have no reason to have a recollection and which could have been accidental. For example, how could anyone, five years after the fact, deny that they had ever brushed past an employee in a narrow corridor, where staff often stood, brushed against her breasts. But A.N. denied this allegation specifically. In my view, this unremarkable event which the complainant admitted could have been accidental would not likely be recalled by the accused in the negative. This vigorous denial added to the problems with A.N.’s credibility.

[43] Looked at on its own, I do not accept the defendant’s evidence. The defendant’s evidence was generally fraught with inconsistencies and included repetitive denials of touching even when the denial was not responsive to the question asked. He was often unresponsive to the questions asked, but when pressed for an answer to a question which sought an explanation of an inconsistency, A.N. would instead repeat his denial of touching M.H.. He was an unimpressive witness, sometimes rambling and repetitive in an exaggerated fashion, for example about his fear of the complainant’s boyfriend or on the other hand his silence for long periods when faced with challenging questions. While his denials of specific allegations of touching understandably lacked detail, it was his answers to questions about his encounter with G.B. and his two meetings with M.H. post-employment that were successfully challenged for inconsistency and implausibility.

Defence Witnesses

[44] The defence called two witnesses who had been identified by the complainant as having been in close proximity to her and who had seen two separate incidents of touching. Neither corroborated the complainant’s testimony.

[45] The first incident occurred on October 10, 2008, when a young adult female patient was in the examining room. The complainant testified that she was in the examination room with A.N. and the patient when A.N. tapped her a couple of times on the backside and told her what he wanted for lunch.

[46] The patient gave evidence. She is a continuing patient of A.N. and has been his patient for over four years. Her young daughter is now also a patient of A.N.. During the complainant’s period of employment, this patient had monthly appointments with A.N., for narcotic prescription re-fills for chronic pain. She testified that at the time of each visit she would describe her pain level was a 7-8 on a scale of 1–10.

[47] This patient testified that she did not ever see A.N. touch the complainant and that had she seen such a thing, she would have left the practice; she would not still be a patient of this physician.

[48] This patient also acknowledged however, that a short time after the alleged incident, she was at the clinic for a doctor’s note for work. She testified that the complainant spoke to her privately and asked her if she remembered the incident and if she would back her up if needed. The patient testified that she did tell the complainant that “if she wanted me to speak to the police, I would”. The patient acknowledged that she did not tell the complainant that she had not seen the incident. The patient also testified that the complainant offered to provide her with a doctor’s note for free, something that usually had a fee attached to it. The complainant denied offering to provide the note for free.

[49] The patient testified that after this conversation with the complainant, she spoke to her own mother who advised her not to get involved. Thus when the police called her about the incident, she responded that she did not want to get involved. She agreed in her testimony that during this conversation with the police she did not tell them that the incident did not happen; simply that she did not want to get involved. Later, when a representative from the defence team spoke to her, she agreed that she had not seen anything.

[50] I am persuaded that the evidence of this witness is not reliable or credible for any of the following reasons: she was strongly influenced by the advice from her mother, her inability to recall exactly what she saw because the incident was fleeting and she was in pain, and her dependence upon the doctor.

[51] Her evidence on at least one point was completely implausible. She is now 24 years old. She has been seeing this doctor since she was at least 19 year old, getting monthly prescriptions for narcotics for chronic back pain. It is a notorious fact that Sudbury, like many communities suffers from a lack of family physicians. (Sudbury Star article dated June 24, 2013, the first day of trial, indicated that 20,000 residents still don’t have a family doctor and if the rate of retirement keeps up, 38,000 will be without a physician in the next few years). It is unlikely that a person who is dependent upon her physician for prescription renewals would give up her doctor in these circumstances when she had no reason to do a favour for the complainant, there was no benefit to her and she would likely end up without a physician. The patient testified about the certainty of her recollection in ways that also give rise to problems with her credibility. She insisted that she misses nothing, has eyes and ears everywhere, and that she was never distracted by her pain.

[52] The evidence of this witness was not plausible or logical. It made no sense and is neither credible nor reliable.

[53] Where the evidence of these two witnesses differs, I prefer the evidence of the complainant. It is unlikely in the extreme that the patient would have agreed to speak to police had she not seen the incident. The patient admitted that she repeated exactly what her mother told her to say which suggests that she had something to tell them but chose not to do so. It was only some long time later when approached by the defence investigator that this witness first articulated that she had not seen anything.

[54] On May 5, 2009, there was an incident which the complainant testified happened within an examination room in the presence of an elderly male patient. The complainant testified that A.N. came into the examination room where she was with the patient, he put his hand in the air, did a weird little dance movement and rubbed his groin against her leg so that she could feel his penis. The incident lasted only a few seconds. The complainant testified that the patient could see what was going on. There was an inconsistency in her two sets of notes. In the journal, the complainant noted that the patient said that A.N. is a weird little man. In her document prepared for the police, the complainant noted that she said these words to the patient. In her evidence at trial, the complainant indicated that she had uttered these words.

[55] In his evidence, the patient testified that he said he did not recall witnessing such a thing. It must be noted that this witness was very hard of hearing. He wore at least one hearing aid and had trouble hearing questions from counsel and from the bench. He acknowledged that he is very hard of hearing. He testified that he did not hear the complainant utter these words at any time. He also said that such an incident could have happened without him noticing but that no such incident came to his attention.

[56] Although this witness does not corroborate the evidence of the complainant, nor do I find that it contradicts her evidence in any material way. The complainant believed that the patient saw what she experienced. He does not recall seeing any such thing nor hearing the words that the complainant said that she uttered at the time. He noted that it is hard to remember that far back.

Credibility Assessment of the Complainant

[57] When the complainant first went to the police on May 13, 2009 to report the conduct of A.N., she brought with her a hand written document which she had hand copied with certain edits from her journal entries. I refer to this document as the May 13th document. It was not made an exhibit, although it was the subject of cross-examination.

[58] The complainant testified that she had kept a private journal since she was a teenager and made entries concerning her family and private life, her work life, her thoughts and feelings, and her poems. The original journal entries were part of a longstanding habit of recording her experiences.

[59] The complainant refreshed her memory from the notes often, especially to recall specific dates and in some cases to recall specific incidents.

[60] It was unchallenged evidence that the journal entries beginning June 5, 2008 to May 5, 2009 were made on the day that they were dated. The complainant testified that the incidents dated between May 6, 2009 and May 13, 2009 were only recorded on the document provided to the police on May 13, 2009.

[61] The complainant admitted that after the first time the accused sexually propositioned her, she formed the intention of producing these journal entries to the police or the professional college. She realized that if she ever complained about the conduct, it would be “her word against his” and so she intended to record as best she could, on the date that things happened, what had occurred. The complainant also brought a tape recorder to work shortly after the first sexual proposition, but she was unable to capture anything that was useful for her purposes.

[62] Notwithstanding the challenge to her credibility on cross examination, I find that the complainant’s overall evidence had a high degree of credibility. The evidence was largely consistent with her notes made in 2008/2009, her evidence at the preliminary inquiry and from the examination in chief through the cross examination. Her evidence was also confirmed in many important respects by her co-worker and her boyfriend and to a lesser extent by two patients who were called by the defence. Importantly much of her evidence was confirmed by the accused.

[63] Where the defence counsel challenged the complainant on inconsistencies between her notes and her evidence, or her evidence at trial and the preliminary inquiry, I will deal with those specifically.

[64] The complainant’s evidence was also logically coherent and in my view plausible. There is nothing that stands out in her evidence that does not follow logically from the facts that were not controversial. The complainant was careful to describe the precise conduct which was the essence of the allegations. She did not make sweeping generalizations. With respect to the defendant’s argument that the allegations describe conduct that is entirely implausible, I disagree and will deal with this below.

Inconsistencies and Lack of Detail

[65] The complainant admitted that the document she prepared for the police was not simply a transcription of her original diary but that she had added or changed details which were not in the original diary. She testified that she wrote the document to describe the incidents as she remembered them.

[66] For example, the complainant was challenged on the lack of detail in her journal with respect to an incident that occurred on June 25. She testified that the accused tried to grab her butt, she slapped his hand away, but she could not remember where in the office it occurred or any other detail.

[67] Such minor imperfections of human recall have no impact on the credibility of the complainant or reliability of her notes. The incident occurred in the first few weeks of employment. The complainant did not yet have an idea of the pattern of conduct as it would unfold. She made a simple note of an event that was deeply troubling and which she believed was wrong. She did not try to embellish her narrative. The complainant acknowledged that she required the journal to refresh her memory of the incident.

[68] There was also a major challenge to the complainant’s credibility based on the difference between her original diary entry of July 28 and the document she prepared for police. In her journal, the complainant described the incident as follows: the accused put his arm around her, brought his face towards her and tried to kiss her; that she turned her head and pulled away; that he then pushed her and told her that was bad. She continued the journal entry by noting that A.N. then pushed her hard enough that she “went out of the room into the hallway”. In the document prepared for police, the complainant described the attempt at a kiss and wrote that A.N. pushed her quite hard on the arm and said that she was bad; that he pushed her hard enough that she “flew sideways out of the room”. In the original journal entry, the complainant wrote that she “laughed” at A.N. when she resisted his kiss. In the document prepared for the police, she wrote that she “yelled” at him when he pushed her.

[69] Again, these are minor and trivial differences. These minor differences in the words chosen to describe the event do not amount to difference in the account of the event. Yelling was not uncommon in this clinic between the physician and the staff. A.N. agreed that he yelled at both staff from time to time. The complainant testified that she had yelled at A.N. on other occasions. She explained in cross examination that she laughs when she is nervous and that she did both on that occasion.

[70] The nub of this allegation is that the accused put his hand on the complainant and tried to kiss her, that she physically resisted and then that A.N. pushed her hard enough that she ended up outside of the room and the next day she had a bruise on her arm which she showed to A.N.. It matters not whether he pushed her hard enough that she “went out of the room” or “flew out of the room”. The two descriptions are not contradictory nor are they inconsistent. The different words used do not have an impact on the actual allegation of what the accused did to her, (i.e., push her out of the room when she resisted him). It is understandable that ten months later when the complainant was summarizing her allegations for the police, she decided that “flew out of the room” was a better way to convey what happened. A witness is entitled to choose their words to describe what happened to them. Narrative is an art not a science, it does have to unfold formulaically each time it is retold. The trier of fact can assess these differences in words used in the context of the particular incident and in the context of all of the evidence. For the purposes of this trial and assessment of credibility, I do not find that this difference taints any of the evidence or diminishes the evidence of the complainant on this allegation.

[71] The complainant was also challenged on her journal entry of an incident that allegedly occurred on April 2, 2008. She testified at the preliminary inquiry about that incident, where she described an attempt by A.N. to grab her breasts. However, at the preliminary inquiry, she was successfully challenged on the surrounding contextual events to that incident, (i.e., whether her boyfriend had recently warned A.N. not to touch her.) In her examination in chief at trial, the complainant read her journal entry and testified that she had no current recollection of the incident.

[72] This memory lapse does not diminish the credibility of the complainant in my view. The complainant made thirty-five journal entries related to her employment. Not all of them were referred to in this trial. Many of the incidents lasted less than a minute. A number of them had similar features. They could all be described as a continuing pattern of sexual harassment. It is now four to five years since these events took place. It is not remarkable that the complainant does not have a specific current recollection of this particular incident. Nor is it remarkable that at the time of the preliminary inquiry that she thought this incident occurred at a particular time related to the clinic visit of her boyfriend.

[73] The complainant testified that she visited the clinic on September 10, 2009. This was months after she had quit and made a complaint to the police. She was working in the office of another physician at the time. The complainant testified that she recalled a visit to the clinic and a conversation with A.N., however, she recalled little else. A.N. and two staff members gave evidence about this visit. These witnesses did not agree as to whether the complainant and the accused were alone together in his office and if they were, how long they were there. A.N. testified that the complainant greeted him with a big hug and offered to tell the police that nothing had happened if he gave her $10,000. The complainant denied she had ever said any such thing. It is not plausible that A.N. would agree to see the complainant alone, knowing that she had made a complaint to the police and to the College. None of the evidence on this point impacts on the credibility of the complainant. How it impacts on A.N.’s evidence I will deal with later.

Implausibility Argument

[74] A.N. began his testimony with a full admission of his conduct of what I have called sexual harassment. As counsel said in final submissions, these were embarrassing and costly admissions, which could place A.N. in personal and professional jeopardy. To be blunt, they might attract professional discipline and civil liability. There was some evidence that the College of Physicians and Surgeons of Ontario was already involved to some extent, however, there were no further facts before the court in this regard.

[75] The significance of possible consequences of these admissions gives a context in which to assess the defendant’s argument that the alleged touchings are implausible because they would require brazen conduct that would be reckless in the extreme and the consequences of discovery would be so dire.

[76] Plausibility is the quality of seeming reasonable or probable; it means that some situation or fact has an apparent worthiness of acceptance, and or the appearance of reasonableness. Implausibility, therefore, is the quality of seeming unreasonable or improbable.

[77] A.N., is a licensed physician and an employer, who, while working in a busy clinic and knowingly making unwelcome sexual propositions to the complainant now argues that it is implausible that he would be so brazen or reckless to touch his employee’s backside or try to kiss her, because to do so would place him in legal or professional jeopardy. I do not accept the argument that the alleged actions are implausible because they require a high degree of recklessness. A.N. had been behaving recklessly since he first had the opportunity to do so. The admitted evidence shows that A.N. took opportunities that were available to him to cross the lines of decency, professionalism and appropriate employer conduct. Although over time the complainant’s protests became louder and more strident, A.N. continued to act with impunity throughout the complainant’s employment. What appears to have triggered A.N.’s conduct towards the complainant was opportunity and power. Those two factors were constant during the period that the complainant worked at the clinic. The only event that ended A.N.’s conduct, either unprofessional or criminal, was the termination of the employment relationship.

[78] This is not to say that just because A.N. sexually harassed the complainant, that he is more likely to have sexually assaulted her. That would be faulty reasoning and I do not ascribe to that logic. I point out the above, simply to reject the defence argument that it would be implausible for A.N. to touch the complainant because that would require a high degree of recklessness given the jeopardy that such conduct would attract. Recklessness was not the limiting factor for A.N.’s behaviour. He admitted to conduct that any reasonable observer, whether a professional or an employer would find reckless and brazen.

Analysis

[79] The first step of the R. v. W.(D.), [1991] 1 S.C.R. 742, analysis asks whether the court believes the evidence of the accused, looking at whether the evidence of A.N. is logically consistent, consistent with the external circumstances and consistent with the evidence of other witnesses. With respect to the May 2009 meeting with the complainant and G.B. shortly after the complainant quit her job, A.N.’s testimony of what the complainant said makes no sense. He denies only one small part of the co-worker’s evidence. He denies that the complainant alleged that he touched her, or that she asked why he touched her. His evidence makes no sense if read together with his denial but is fully consistent with the evidence of the co-worker who could hear the exchange between A.N. and M.H.. The co-worker’s evidence is consistent with the complainant’s allegations and her evidence that she had long felt that she had been wronged. With respect to this meeting I find A.N.’s testimony neither internally logical nor consistent with the other witness.

[80] The defence suggested the co-worker was a biased witness because she also later quit her employment and felt she had been unfairly treated by A.N.. The co-worker gave her evidence in a neutral manner. Her answers were responsive to the questions asked and were internally consistent. Four years have passed since she last worked for A.N.. She has moved on. Nothing in her manner or in her testimony suggested that she carried any animus towards A.N.. I find her to be a neutral witness. Where her evidence differs from A.N. on this exchange, I prefer her evidence.

[81] I have also considered the evidence describing the encounter between G.B. and A.N.. On this incident, I again reject the evidence of A.N. where it is contradicted by G.B.. Once again, it does not follow logically from the circumstances. With respect to the evidence describing the September 10, 2009 visit by the complainant to A.N.’s office, I reject A.N.’s evidence to the extent that it is contradicted by the complainant. A.N.’s evidence is simply implausible given the circumstances.

[82] The assessment of the evidence is not and cannot be reduced to an “either/or” approach, where the court makes a choice between competing versions. The evidence with respect to the meetings and encounters damaged A.N.’s credibility. Looking now at the specific allegations, the fact that I have found the complainant’s evidence on the whole, credible does not resolve the case. I must still consider and weigh the defendant’s version of each of the allegations and if unable to reject it, must consider myself to be in a state of reasonable doubt.

[83] The May 5, 2009 allegation is that A.N. rubbed his groin against the complainant’s leg. A.N. strongly denied that he touched the complainant in this way. The patient’s evidence does not assist the defendant. The patient confirmed that A.N. could have been in an examination room with both A.N. and the complainant. I cannot accept the defendant’s denial of this event.

[84] As I indicated earlier in these reasons, the evidence of the patient who was in the examination room at the time, does not contradict the complainant’s account of what happened. I am persuaded that the touching occurred in the manner described by the complainant. Overall, her evidence was supported either by the accused or other witnesses time and time again. The complainant gave her evidence in neutral terms and relied to a great extent on the brief notes she made at the time, for the specific purpose of recording what she considered to be events that should be reported either to the professional college or to the police. The complainant’s evidence on this incident convinced me that she was accurately recalling and relating a real incident. Shortly after this incident her boyfriend visited A.N. and referred to the groin rubbing incident. Days later, the complainant quit her employment in a highly emotional state. These events flow logically one after the other.

[85] The sexual nature of this incident must be viewed against the sexually charged atmosphere created by A.N., who admits that he found the complainant sexually attractive and was trying to convince her to have a sexual relationship with him. He repeated in his testimony that he thought the complainant might change her mind with respect to his propositions. It is also consistent with his complete lack of empathy for the upset that he knew his words and conduct caused the complainant.

[86] The evidence proves beyond a reasonable doubt that on May 5th A.N. committed a sexual assault on the complainant. He rubbed his groin against her leg. This was done without her consent. To any reasonable observer this act would be considered sexual in nature so as to violate the sexual integrity of the complainant.

[87] Notwithstanding that A.N. admitted to making repeated sexual propositions to the complainant, I do not find that every incident of touching constitutes a sexual assault. His conduct throughout the employment relationship can be explained partly by his admitted sexual attraction to the complainant but also by his apparent ignorance of the limits of his authority as an employer and the disrespect he showed his staff. These latter can explain his crude and abusive interactions with them. Because the facts in this case support a finding of at least one clear incident of sexual assault, I need not analyse each incident of touching which I do accept, to assess whether they took place in circumstances of a sexual nature so as to violate the sexual integrity of the complainant.

[88] A number of the incidents which I accept occurred, were simple assaults, that is, the application of force without consent. There is no question that throughout the employment relationship, the complainant made it clear to A.N. that she did not consent to his touch. A.N. does not contest this. The complainant described an incident where A.N. tapped her on the backside twice when he asked for or ordered his lunch on October 10, 2008, in the presence of a young woman patient. There may have been a time and place in history where employees had to put up with that type of behaviour. Some employers or supervisors thought that their position of authority gave them the right to treat a female staff like a child. We have evolved, socially and legally since then. Employers and professionals are warned that their authority does not include the right to touch their employees. A touch without consent is a criminal offence; employers are not immune from this prohibition. There was no evidence that these particular touches violated the sexual integrity of the complainant, nor am I convinced that the reasonable observer would consider these touches a carnal or sexual touch, so as to violate the sexual integrity of the complainant.

[89] I find that on the whole the evidence supports the complainant’s testimony that the event took place as alleged. I am convinced beyond a reasonable doubt that a touching occurred, in part by the evidence of the patient whose evidence I have assessed earlier in these reasons. The patient’s evidence supports the complainant’s version of the incident. The patient’s evidence that the incident could not have occurred in her presence is completely unbelievable and I reject it. It is not consistent with her admitted words or conduct and parts of it were given in such a flamboyant and exaggerated manner as to defy belief.

[90] This touching constitutes an assault.

[91] I consider the incident of October 15, 2008 in the same vein. I accept that A.N. touched the complainant while he was reprimanding her in his office. I accept that he tapped her on the backside approximately five times. This was done without consent and constitutes an assault.

[92] Similarly with respect to the evidence concerning the incident which occurred on July 28th, I am persuaded beyond a reasonable doubt that A.N. pushed the complainant out of the room when she resisted his attempt to kiss her. The plaintiff’s evidence on this incident was unshaken notwithstanding a vigorous challenge to her credibility. Her note made at the time was not inconsistent with the words she used to describe the incident to the police. The version of this incident was consistent in many ways, with the admitted conduct of A.N.: he refused to accept no for an answer and the abusive way he regularly treated the complainant. I reject A.N.’s denial of this incident. That conduct constitutes an assault.

[93] The complainant’s evidence regarding the incidents of July 23, 2008, July 29, 2008, July 31, 2008, April 2, 2009 and the second incident of May 5, 2009 lacked the level of detail of the other incidents. It is not necessary to further analyse them for the purpose of this decision, as I have found that there was one clear sexual assault during the period set out in the indictment.

[94] On the facts before me, I am not left in a reasonable doubt that A.N. sexually assaulted the complainant at least once during her employment.

[95] The indictment alleges one sexual assault between June 2008 and May 2009.

[96] There shall be a conviction on that count.

Madam Justice Patricia C. Hennessy

Orally Released: August 9, 2013

Released: September 6, 2013

COURT FILE NO.: 343 / 12

DATE: 2013-09-05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

A.N.

REASONS FOR JUDGMENT

Hennessy J.

Orally Released: August 9, 2013

Released: August 12, 2013