Court File and Parties

COURT FILE NO.: CR-813/16 DATE: 2017-01-10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – S.G. Respondent

Counsel: Elise Quinn, for the Crown Edmond J. Paquette, for the Respondent

HEARD: January 9, 2017

Ruling on Application

GAUTHIER, J.

The Application

[1] The Crown seeks leave to adduce evidence of discreditable conduct on two fronts: (a) from one count to another, and (b) evidence extrinsic to the offences described in the indictment.

The Facts

[2] I have borrowed liberally from counsel’s facta.

[3] M.C. first met S.G. when he interviewed her for a contract as an administrative assistant for the Municipality of French River. S.G., who was the chief administrative officer for the municipality, interviewed M.C. with J.B. the treasurer. M.C. was the successful applicant and she began working on April 22, 2014, on a 16 week contract.

[4] In July of 2014 after S.G.’s involvement in his campaign ended, M.C. offered him a hug and condolences and gave him some positive words of encouragement.

[5] At the time S.G. invited her to come over for a barbeque sometime.

[6] About a week after the invitation, M.C. attended at S.G.’s home for the barbecue. The approximate date of her attendance was July 10, 2014. She had recently broken up with her boyfriend. M.C. arrived around “dinner time”. She went there “to have a barbeque or to, you know, just to sit and relax and chat.” They did not have a barbecue. S.G. asked her if she was hungry but she said no.

[7] Instead, they went on the back deck and talked and drank wine.

[8] S.G. asked her to play a poker game. The game was such that a poker hand was played and the loser would have to take a chip that had a sexual gesture on it that “you would have to do from losing”.

[9] S.G. explained to M.C. what the game consisted of and she read some of the chips before play commenced. At that point the two of them were inside the house.

[10] S.G. had said there was “no pressure” to play the game.

[11] While playing the game, M.C. performed a strip tease and the two of them French kissed (more than once). During the strip tease, M.C. took her shirt off. She did these things of her own free will.

[12] The next day, he apologized for his behaviour.

[13] On a regular basis, the respondent commented on the complainant’s looks and how well she dressed. He gave her gifts, such as jewelry, sometimes lingerie and on at least one occasion, a sex toy. He stated that these gifts were only because “she was doing such a good job at work”.

[14] In August 2014, M.C. attended a conference in London with S.G., two counsellors, and the mayor.

[15] The mayor and counsellors stayed at the hotel where the conference was being held and M.C. and S.G. stayed in a different hotel, in separate rooms, which was about 15 minutes away from where the conference was being held.

[16] S.G. and M.C. travelled together in one vehicle and the others travelled together in a separate mini-van. Prior to leaving for the conference there were discussions about who would be travelling with whom and M.C. decided to get on with S.G.

[17] They stayed at the conference for three nights.

[18] On the second night there was a banquet. M.C. had not brought any dress clothes with her. The two of them went to a mall and a dress was purchased. S.G. asked M.C. if she wanted to come over for a drink before going to the banquet to which she agreed.

[19] M.C. went over to S.G.’s room. The door was either unlocked or she had his room card. When she opened the door S.G. was standing in the bedroom wearing only leather chaps “and he was like, oh look… I bought this, whatever, what do you think kinda [sic] deal”.

[20] M.C. indicated that she was going to go and finish getting ready and would be back in 10 minutes. When she returned S.G. was dressed and ready to go. S.G. was trying to kiss her and she “kissed him back” in the elevator.

[21] They went to the banquet and S.G. was joking around calling her his “work wife”. He was getting her drinks and doting on her.

[22] M.C. left the hospitality suite after the banquet.

[23] She had either “just got in” or “maybe it was a few hours later” and there was a banging on the door. It was S.G. and she didn’t answer. She pretended she was asleep because she didn’t want to get up to deal with it. He left and a short time later her door opened and she could see S.G.’s arm reach in but she had the latch on. After he left she laid there until she fell asleep.

[24] The next morning S.G. was banging on her door right after her alarm had went off. When she finally opened the door he came running in and gave her a huge hug and said “I’m so glad you’re okay. I’m so glad you’re okay. I was worried about you”. She responded “you don’t need to be worried about me” and he said “I thought that something happened to you and you know I’ve just been up all night. I’ve been going crazy”.

[25] She asked him to leave because she needed to get dressed, and he said “okay, when you’re ready to go, just come to my room and get me.”

[26] M.C. got ready and then went over to S.G.’s room. While in the room, S.G. said “you know, I think it’s silly but I have to show you this” and he passed her a piece of paper which indicated that he wanted a no strings attached sexual encounter with her and he would be offering her two hundred dollars for that. M.C. threw the note away.

[27] In August 2014, M.C. worked overtime with S.G. to put together projects that were going to the Minister of Rural Affairs and Infrastructure. M.C. had a drink of rye whiskey. S.G. also had a drink. They again played the sex poker game. This time for between about 20 minutes to half an hour. M.C. “willingly played the game”.

[28] In September of 2014, M.C. attended a conference in Burlington with S.G. They again travelled together, but this time M.C. drove.

[29] Although it was unclear why the complainant did not know this earlier, before they arrived at their hotel, S.G. had told her that there was a bunch of boxes in the back of her vehicle and they were gifts for her.

[30] At the beginning of December 2014, meetings were set up such that S.G. and M.C. would travel to Barrie and meet with engineers. M.C. set up these meetings. The next day they were to travel to St. Thomas to pick up the mayor and drive to the Kitchener/Waterloo area for another meeting, and then possibly to meet with the minister.

[31] M.C. was not sure who made the arrangements for the hotel. When they arrived there was only one room booked. Without any resistance S.G. paid for a second room for M.C. After checking in they went to S.G.’s room. He had a suite.

[32] They went to dinner at a place called Houston’s where they had some drinks and had some laughs.

[33] Afterwards they went back to the hotel room later in the evening and had sex. M.C. says she did not want to have sex with S.G., but she did because he told her that after that he wouldn’t want it and she thought that was the only way to end it.

[34] The next day, while en route back to Noelville from the meeting, S.G. continued to persist in requesting sex from the complainant. He stated that “he wanted more than just one night”. M.C. became upset and started feeling anxiety. She did not go to work for two days. When she finally returned to work, she set up a meeting with the mayor to discuss S.G.’s behaviour. A short time later, S.G. resigned from his position as chief administrative officer.

[35] Throughout their relationship, the respondent often mentioned how her contract was coming to an end in August 2014 but that he wanted to keep her on because “she was doing a good job”. While on contract, the respondent told M.C. that she worked for him. The complainant did not officially work for the respondent as she was supposed to report to another individual called Jim Sartor.

The Charges

[36] The accused is charged with (a) one count of sexual assault (s. 271), (b) one count of criminal harassment (s. 264(2)(b)) and (c) one count of breach of trust (s. 122).

The Issue

[37] Whether or not the Crown will be permitted to adduce the evidence of T.V. about the accused’s conduct toward her as part of the evidence on the sexual assault count. And whether or not J.B.’s evidence about the accused’s use of his position (i.e., securing upgraded accommodation) is admissible on the sexual assault count.

The Evidence

[38] Both T.V. and J.B. were employed by the Municipality of the French River during the time of the accused’s employment as the chief administrative officer for that municipality, and had dealings with him during that time, which is the time frame within which the charges have arisen.

[39] T.V. was the tourism coordinator from April 2013 to May 2016. Her job was a contract position in the beginning. Although T.V. reported directly to a different individual, the accused was technically her superior.

[40] She indicated that one day, shortly after the accused was hired by the municipality, he came to her office, shut the door behind him, sat down beside her (rather than across the desk from her), put his hand on her leg and said words to the effect of:

You’re in a man’s world, but I have your back.

[41] The accused further assured T.V. that her contract position would become a permanent, full time position.

[42] T.V. testified that the accused sent her a number of inappropriate text messages commenting on her appearance. He made such comments at the workplace as well.

[43] On one occasion, the accused entered the lunchroom where T.V. and others were and began playing with a zipper which was just above T.V.’s breast area.

[44] On one other occasion, the accused entered her office while T.V. was having a meeting with two other municipal employees and proceeded to massage her shoulders.

[45] On one occasion, at a trade show at the Royal Winter Fair in Toronto in November 2013, the accused insisted she have a “double” alcoholic beverage. He persisted after her refusal, and he directed the bartender to prepare such a drink for her. She declined to consume it.

[46] T.V. described the accused’s behaviour toward her as inappropriate, and contrary to the municipality’s sexual harassment policy. It made her feel uneasy. She felt “like some of my independence had been sucked out of me.” She said that she was concerned about losing her job or doing the wrong thing.

[47] She complained to her supervisor about the accused’s behaviour.

[48] The behaviour did stop, however, it was T.V.’s perception that she was being pushed away from work related events that she should have participated in by the accused. She testified that the accused had by then begun to display preferential treatment toward the complainant, M.C.

[49] J.B. was the treasurer for the municipality.

[50] J.B. testified that the complainant was hired by the municipality as an administrative assistant, pursuant to special program with external funding. Her direct supervisor was Jim Sartor, the superintendent of the public works department.

[51] J.B. testified that the complainant received preferential treatment by the accused: he would ask J.B. to fast track the complainant’s expenses, and he arranged for the complainant to attend conferences and meetings that administrative assistants would not normally participate in.

[52] J.B. also observed the complainant signing documents which normally would be signed by department heads, and, although J.B. has no direct knowledge of who had directed the complainant to do so, she inferred that it was as a result of the accused’s direction or involvement.

[53] J.B. also suggested that it was the accused who modified the complainant’s job description by the end of her contract to provide that the complainant would report to him 20% of the time. The complainant had been reporting directly to Jim Sartor 100% of the time up to that point. J.B. conceded that it was possible that the council of the Municipality of the French River had modified the job description.

[54] J.B. further testified that the accused, on two occasions, secured upgraded hotel rooms for himself when other regular rooms were available. The room in which the alleged sexual assault of the complainant occurred was a “luxury suite with a Jacuzzi”. She indicated that the accused had booked that accommodation ahead of time. And, although both himself and the complainant were going to attend the conference, that was the only room that had been booked. Later, a second room was booked and paid for by the accused.

[55] J.B. testified that the accused said to her, about the room upgrades;

I know I shouldn’t, but I can and I did

[56] Finally, this witness testified that the accused did not, as he should have, secure pre-approval of his expenses.

The Crown’s Position

[57] The Crown correctly points out that the single most important issue in the case is whether or not the complainant’s consent to have sex with the accused was obtained (and therefore vitiated) by the accused’s breach of his position of authority over the complainant. The mens rea of the accused is at the forefront.

[58] The evidence the Crown seeks leave to adduce informs the trier of fact on the accused’s state of mind. The accused used the power of his position in the workplace to get what he wanted. He used the promise of job security to achieve his ends.

[59] In addition, the accused was aware that the complainant had had some mental health issues.

[60] The evidence is relevant and its probative value outweighs its potential for prejudice, particularly as the trial will be without a jury.

The Accused’s Position

[61] The tendered evidence has no connectedness to the relationship between the accused and the complainant and the issue of the complainant’s consent.

[62] At its highest, the evidence of the accused’s conduct with T.V. only demonstrates poor judgment regarding appropriate work and work-related conduct.

[63] J.B.’s criticism of the accused’s attendance at certain conferences, and her questioning of the need to have the complainant attend the conference(s), is purely her opinion based on her job as the treasurer of the municipality. The bottom line for her was fiscally responsible spending of the municipality’s funds. She has no expertise or knowledge to testify about whether or not someone’s attendance at a conference or a meeting made sense from a political or practical perspective.

The Law

[64] All relevant evidence is presumptively admissible. To be logically relevant, an item of evidence does not have to firmly establish on any standard the truth or falsity of a fact in issue. Rather, it must simply tend to increase or diminish the probability of the existence of a fact in issue. R. v. Morris, [1983] 2 S.C.R. 190.

[65] As a rule, character evidence is not admissible as circumstantial proof of conduct. The rule disallows an inference from the similar facts that the accused has the propensity or disposition to do the type of acts with which he is charged and is therefore guilty of the offence. The danger is that the trier of fact will give disproportionate and unjustifiable weight to the similar fact evidence (the reasoning prejudice) and/or will convict based on bad personhood or bad character (the moral prejudice). R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.), para. 31.

[66] Propensity reasoning that is based solely on the general bad character or disposition of the accused, as revealed through evidence of earlier similar conduct is what is prohibited.

[67] The exception to the exclusionary rule is where evidence of previous misconduct may be so highly relevant and cogent that its probative value outweighs any potential for misuse. Handy, para 41.

[68] It is now acknowledged that evidence of propensity or disposition, even if it relates to issues other than mere propensity or disposition, does not cease to be propensity evidence. Handy 59.

[69] The principal driver of probative value is the connectedness or nexus between the similar fact evidence and the offences, particularly where the connections reveal a degree of distinctiveness or uniqueness. Handy 76.

Where the issue in a case is not identification, the “drivers of cogency in relation to the desired inferences will…not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.”

[70] Although the similar fact evidence need not be conclusive, it nonetheless must meet the test of sufficient probative value to outweigh prejudice on the balance of probabilities. The assessment of probative value is contextual.

Analysis

[71] I conclude that the evidence of T.V. and J.B., proffered by the Crown does not assist me in determining the issue of consent.

[72] At its highest, the evidence establishes that (a) the accused tended to behave inappropriately with subordinate employees, (b) that he persistently did so (evidence of T.V. about the text messages), (c) on occasion behaved inappropriately in the presence of others (T.V.’s evidence about the zipper and the massaging of the shoulders), (d) he showed preferential treatment to employees that he favoured (J.B.’s testimony about having to rush the complainant’s expense accounts, etc.), (e) he used his position to assist both T.V. and the complainant to obtain full time employment, (f) when rebuffed, he would retaliate (T.V.’s evidence) of being “pushed out” of certain work related functions, and, (g) he took advantage of his position to secure certain “perks” for himself, such as hotel room upgrades.

[73] While the Crown suggests that the above evidence relates directly to the issue of how the accused secured the complainant’s consent to engage in sexual intercourse, I cannot come to the same conclusion.

[74] At the preliminary hearing, the complainant clearly indicated that she chose to have sex with the accused because she believed that “it would end after that”. The accused had told her that if they had sex once, he would never ask that of her again.

[75] In the course of her cross-examination during the preliminary hearing, the complainant agreed that the accused never threatened her job if she did not go back to the accused’s hotel room with him and, in the course of their dealings with each other on the night in Barrie, there was no conversation about their relative work positions.

[76] There is little or no similarity in the accused’s dealings with T.V. and his dealings with the complainant. There was no forcing of any alcohol on the complainant, and the evidence of physical contact between the accused and the complainant is very different than that with T.V.

[77] The Crown emphasized the importance of the evidence about the accused booking only the luxury suite for the conference in Barrie, and not booking a separate room for the complainant until she requested same.

[78] That evidence is receivable directly from the complainant. It is not necessary to rely on J.B.’s evidence on this point. There is no issue about the admissibility of this evidence, directly from the complainant.

[79] When one considers all of the proposed prosecution evidence, it fails the connectedness test. There is insufficient commonality and nexus between the evidence of discreditable conduct and the offence of sexual assault. There is little probative value to the evidence proffered; any such value would be outweighed by the risk of prejudice.

[80] Accordingly, the application is dismissed.

The Honourable Madam Justice Louise L. Gauthier Released: January 10, 2017