R. v. J.P., 2017 ONSC 5578

COURT FILE NO.: CNJ 8686

DATE: 2017/09/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.P.

Accused

Armin Sethi, for the Crown

Bruce Ritter, for the Accused

HEARD: January 16, 17, 18, 19, 20, 23, 24, April 6 and July 21, 2017

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITIES OF THE COMPLAINANTS AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE IDENTITY OF THE ACCUSED, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

D.A. BROAD, J.

REASONS FOR JUDGMENT

[1] The accused J.P. is charged with five (5) counts of sexual assault against five separate complainants. The offences are alleged to have taken place in the workplace of J.P. and each of the five complainants, being S[…] Home (“S[…]”), a long-term care facility owned and operated by the Regional Municipality of Waterloo in the City of Kitchener. J.P. was employed at S[…] as a Registered Practical Nurse (RPN) and four of the complainants L.H., L.B., T.B., and H.S. were employed as Personal Support Workers (PSW’s). The fifth complainant K.S. was, at the relevant time, completing a work placement as part of her college training to become an RPN. J.P. was in a supervisory capacity with each of the PSW complainants and acted as preceptor for K.S.’ work placement.

[2] At the commencement of the trial an order was made, on consent, pursuant to s. 486.4 of the Criminal Code banning publication of information which could identify the complainants or the accused. The complainants and the accused are therefore not identified by name but by initials.

[3] The charge periods for the counts in the indictment are as follows:

Count

Complainant

Charge Period

One

T.B.

August 1, 2011 to July 31, 2012

Two

H.S.

January 1, 2013 to February 1, 2014

Three

L.H.

May 31, 2014 to November 21, 2014

Four

L.B.

May 8, 2013 to September 13, 2014

Five

K.S.

January 1, 2014 to May 31, 2014

Basic Principles

[4] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.

[5] J.P. is presumed to be innocent of the charges, unless or until the Crown has proven each of the essential elements of the individual counts in the indictment beyond a reasonable doubt.

[6] Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him, it is not enough to find that J.P. probably or likely committed the offences with which he is charged. However, the Crown is not required to prove with absolute certainty that he committed the offences, but the level of standard of proof is closer to certainty than it is to probability.

[7] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.

Principles Governing the Assessment of the Evidence

[8] Recognizing the distinction between credibility and reliability is essential to a proper analysis of a witness' evidence.

[9] As confirmed by Watt J.A. in R. v. C. (H.), 2009 ONCA 56 (Ont. C.A.) credibility has to do with a witness' veracity, whereas reliability has to do with the accuracy of the witness's testimony involving his or her ability to accurately observe, recall and recount events in issue. Veracity refers to the truthfulness or honesty of the witness. Although a witness whose evidence on an issue is not credible cannot give reliable evidence on the same point, credibility is not a substitute for reliability. A credible witness may be honestly mistaken and may thereby give unreliable evidence.

[10] The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown's evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R. v. Vuradin, 2013 SCC 38 (S.C.C.) at para. 21).

[11] Justice Molloy, in the recent case of R. v. Nynik 2017 ONSC 4392 (S.C.J.) at para. 12 observed as follows:

It is possible that the judge might not fully believe the defendant’s version of the events, and might find the complainant’s version to be more credible, but still be uncertain as to what actually happened. In that situation, there is reasonable doubt, the benefit of which must go to the defendant, even where the complainant’s story is more plausible or more believable that that of the defendant.

[12] Although it is fundamental that an accused is not required to testify, where he chooses to do so, as J.P. did in this case, the law requires that I take the following approach:

(a) if I believe J.P.'s evidence that he did not commit the offences charged, I must find him not guilty;

(b) even if I do not believe J.P..'s evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and

(c) even if J.P.'s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.

(see R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.))

Basic Principles Governing the Offence of Sexual Assault

[13] The offence of sexual assault derives from sections 265 and 271 of the Criminal Code. Subsection 265(1) sets forth the circumstances by which a person commits assault. Subsection 265(2) provides that the section applies to all forms of assault, including sexual assault.

[14] The term “sexual assault” is not defined in the Criminal Code. In the seminal case of R. v. Chase [1987] S.C.R. 293 the Supreme Court of Canada stated, at para. 11, that sexual assault is an assault, within any one of the definitions of that concept in what is now s. 265(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. McIntyre, J., writing for the Court, made the following observations in reference to the factors to be taken into account in determining whether a sexual assault has been committed:

(a) the test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one, stated as “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”;

(b) The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant;

(c) the intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual;

(d) if the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. However, the existence of such a motive is simply one of the many factors to be considered, the importance of which will vary depending on the circumstances;

(e) the offence of sexual assault is one requiring a general intent only, rather than a specific intent.

Issues

[15] The existence of consent is not a relevant consideration in the present case as J.P., in his testimony, maintained that none of the incidents which the Crown alleges constituted sexual assaults against the complainants took place. The issues are therefore whether the Crown, in reference to the counts in the indictment, has proven beyond a reasonable doubt:

(a) that the incidents took place; and

(b) if one or more of the incidents took place, whether they constituted sexual assaults.

Evidence of the Complainants

(a) Testimony of L.H.

[16] L.H. testified that she became employed as a PSW at S[…] in or about the spring of 2012. She worked there until November, 2015. She first came into contact with J.P. in the late summer of 2014 when she was transferred on to the floor where J.P. worked, called “C[…]”, to work the afternoon shift from 3:00 p.m. to 11:00 p.m. She described J.P. as her supervisor on the floor.

[17] L.H. testified that her relationship with J.P. was professional in the beginning but gradually changed. Approximately one month after she started on the floor J.P. spoke to her, suggesting that she had used a lift inappropriately. On cross-examination she stated that J.P. had intimated that other employees had lost their jobs as a result of incidents of this nature, and that he was friends with persons “higher up” in the organization who could have her fired. She denied that she had used the lift inappropriately, and pointed out to J.P. that he was mistaken. Although she felt upset by the incident, she denied on cross-examination that she was angry with J.P. about it.

[18] On another occasion J.P. spoke to her about failing to use gloves while attending to a patient’s care. She denied that she was angry with him for speaking to her about this. She stated that she listened to him and corrected what she had done wrong.

[19] L.H. described an incident that took place when she was seated at the communication desk doing paperwork. J.P. walked by and said very softly that she had “nice tits”. Although she was “kind of taken aback” nothing further was said between them.

[20] L.H. testified that a few weeks later she was walking down the hall towards the communication centre when J.P., who was following her, made the comment that she had a “nice ass”. She turned back and stated “that’s inappropriate” and kept on walking. She stated that J.P. shrugged it off and kept on walking.

[21] L.H. stated that the discussion regarding the alleged improper use of the lift took place after the incidents involving J.P. making comments about her body. No touching or any physical interaction took place surrounding the making of those comments.

[22] The incident which the Crown alleges constituted a sexual assault under count three of the indictment is alleged to have occurred in a resident’s room. L.H. testified that she was beside the patient’s bed performing patient care. She noticed that J.P. had popped his head into the room and asked if she needed help. She told him that she did not need any assistance. She testified that suddenly she felt his hands on her hips. He leaned in and said “do you need help?” She quickly moved to the side and went around to the other side of the bed and told him “I don’t need your help, I’m fine.” J.P. stated “No I will help you” and he stayed in the room, helped her with the care of the patient and left.

[23] L.H. stated that when J.P. was touching her hips his chest was touching her back as he leaned into her. He did not move his hands while they were in contact with her hips. She testified that the contact was of very short duration as she moved away quickly.

[24] L.H. stated that the three incidents she described, consisting of the two verbal comments about her body and the touching of her hips made her feel very uncomfortable and unsafe in her work environment.

[25] L.H. testified that in early to mid-August, 2014 she was off work for six weeks with an injury. During the months leading up to her injury she had been calling in sick and not taking on extra shifts. She stated that she wasn’t herself and that her “work ethic just wasn’t there.” Her supervisor J.S. asked her to attend a meeting to talk about her absenteeism. During the meeting Ms. J.S. indicated that she had received many complaints regarding L.H.’s work ethic and about her failing to wear gloves and to wash her hands. When Ms. J.S. asked her what was going on L.H. disclosed the incidents involving J.P. Ms. J.S. responded that the police needed to become involved. L.H. subsequently gave a statement to police.

[26] L.H. acknowledged on cross-examination that she had a discussion with one of the other complainants L.B. about the incidents involving J.P.’s inappropriate conduct. This occurred prior to her injury leave and prior to her meeting with Ms. J.S.. After L.H. related the incidents to her, L.B. disclosed that J.P. had also acted inappropriately towards her. In a subsequent discussion after L.H.’s meeting with Ms. J.S., L.B. advised L.H. to report the incidents to someone. L.H. also acknowledged that she spoke to a third complainant, H.S., who told her that she had also made an allegation about J.P.

[27] In her statement to police L.H. related that during her meeting with Ms. J.S. she disclosed that things were going on at work that she was not comfortable with, but she was scared to talk about them because she was not sure that anyone would believe her and she questioned whether she was reading too much into the incidents. She told police “it’s not like he touched me - he did not touch me sexually that way. He didn’t force himself on me, anything like that, but still the things that he did and said were inappropriate.” L.H. maintained on cross-examination that she still considered J.P.’s actions in touching her hips and leaning into her as “sexual in her eyes.”

[28] L.H. denied defence counsel’s suggestions on cross-examination that she had made comments to J.P. about his rear end and patted J.P. there, or that she had playfully flicked his earring with her finger.

(b)Testimony of L.B.

[29] L.B. testified that she has been employed as a PSW at S[…] since May, 2013. She was regularly employed on floors other than C[…] where J.P. worked. However, she was assigned to work on C[…] on a number of occasions when it was short-staffed. The initial assignment occurred during the first year of her employment.

[30] L.B. described J.P. as being in charge of the floor. As the RPN on the floor J.P. was the person that the PSW’s would go to with any concerns regarding a resident.

[31] L.B. stated that for the first few times she worked with J.P. he seemed very carefree and easy to talk to but after a few times of working on the floor her opinion changed due to his inappropriate behavior towards her.

[32] L.B. described one occasion in which J.P. ran his fingers through the hair of her ponytail saying that she had “very nice hair – nice ringlets.” She pulled back and asked him not to do that. On another occasion he came up behind her while she was working in the spa area and blew on her neck. L.B. stated that on each of these occasions she responded by putting distance between herself and J.P.

[33] L.B. stated that J.P. made comments regarding her appearance, commenting on how nice her lips were. She responded by telling him “you know that makes me feel uncomfortable.” On an earlier shift he commented on her eyes, telling her that she had “beautiful eyes.”

[34] L.B. testified to the first of the two incidents which the Crown alleges constituted sexual assaults for the purposes of count four of the indictment. While she was standing at the computer in the hallway J.P. came up behind her and pressed his genitalia area against her bottom. She could not recall if she said anything to him, but when she turned around he had a smirk on his face.

[35] The second incident which the Crown alleges constituted a sexual assault took place during the same shift. L.B. stated that she was standing at a computer terminal in the hallway when she felt her bottom being grabbed. When she turned around J.P. was standing there. There was no one else in the area. She indicated that J.P. was about a “forearm’s length” away from her. He again had a smirk on his face. She told him what he did was inappropriate, that he should not be doing it again, that she had dealt with people like him before, that it was not the first time it had happened to her, and that she would report it if he touched her again. She said that J.P. just shrugged and left.

[36] L.B. testified that J.P. did not touch her again after the “butt grabbing” incident and that when she went on the C[…] floor after that he was very professional. She did not report the incidents of touching until sometime later.

[37] L.B. described meeting with L.H. on breaks in the fall of 2014. L.B. noticed that L.H.’s demeanour had changed. She also noticed L.H.’s absences from work. L.H. disclosed to her that J.P. had been “inappropriate” and that she did not feel comfortable talking about it. L.H. advised L.B. to make sure that she is not alone with J.P. while working on the C[…] floor. L.B. advised L.H. that “if these are big concerns then you need to let our supervisor and our union rep know”.

[38] L.B. testified that a couple of weeks after L.H.’s meeting with Ms. J.S. she also met with Ms. J.S. and told Ms. J.S. that she might have to take time off work to support her friend L.H. During the course of the meeting L.B. disclosed to Ms. J.S. the incidents involving J.P. inappropriately touching her.

[39] L.B. stated that between the ponytail incident in October, 2013 and the incidents involving J.P. pressing his genital area against her and grabbing her bottom in the summer of 2014, J.P. did something inappropriate towards her each time she worked with him at C[…]. However, it was not clear in her evidence how many times she worked at C[…] during that time. On cross-examination L.B. acknowledged that she had been mistaken about the touching incidents having taken place in the summer of 2014. She confirmed that they had occurred in or around October, 2013, shortly after the computerized Point of Care charting system had been installed in the facility. After she told J.P. that she would report him if he touched her again his inappropriate behavior ceased.

[40] L.B. testified on cross-examination that in the first meeting with L.H. in which L.H. had disclosed that J.P. had been “inappropriate” and made her feel uncomfortable, neither of them disclosed the details to the other.

[41] On cross-examination L.B. acknowledged telling the Waterloo Region workplace safety representative in an interview, in reference to the incident involving J.P. allegedly pressing his genitalia against her, that she initially thought that she was in his way and either he or she had accidentally bumped into the other and that she had said “sorry.” At the time she did not know if the incident was an accidental brushing up between the two of them.

[42] L.B. acknowledged that she told the investigator that the next thing that happened was the blowing on her neck. Since the interview was closer in time to the incident, she acknowledged on cross-examination that the blowing on her neck was the same incident as the grabbing of her bottom and that she had been mistaken when she testified in chief that it had been an earlier separate incident.

[43] She also acknowledged telling the investigator that “later on in the shift he grabbed my bottom and I said ‘this is not my first rodeo. If you try doing this again, I will make your life hell.”

(c) Testimony of H.S.

[44] H. S. testified that she was employed as a part-time PSW on the C[…] floor at S[…] from 2011 to February, 2014 when she moved to different floors in the facility. Although she had previously met J.P. working on a shift on a different floor she began working with him regularly on C[…] in January, 2013. She described J.P. as her boss on the floor. If there were any issues she went to him.

[45] H.S. testified that she and J.P. became good friends while working together on C[…] and she also became a friend of his wife, who also worked at S[…]. She stated that the workers on the floor, including J.P. and herself, had nicknames for each other. She and J.P. would often have conversations, including about their personal lives.

[46] H.S. testified that in April, 2013, J.P. did something to her that she did not like. She was in the hallway with a co-worker. She was slouched over when J.P. came up behind her, put his hands on her back, pulled her shoulders back and told her to stand straight and stick her chest up. H.S. told him not to do it and was upset. J.P. commented “no one wants to be married to a hunchback” to which H.S. responded that she had back problems.

[47] H.S. described an incident in June, 2013 which she was riding the elevator with J.P. as she was arriving for her shift. They were alone in the elevator standing face to face. J.P. commented that he noticed that she had a tan from her trip. H.S. responded jokingly that most people say that she leaves her tan at the airport, meaning that she did not think she had much of a tan. When the elevator doors opened J.P. said “I think tan lines are sexy” and he pulled her scrub top to the side past her shoulder. H.S. then walked quickly to the communication room and started crying. She subsequently was able to pull herself together and continued working her shift.

[48] H.S. stated that J.P.’s action in pulling her top down over her shoulder made her feel embarrassed, ashamed and “kind of shocked” because he had never acted like that before.

[49] Later during the same shift, H.S. was preparing to transfer a resident when J.P. offered to help her. He then said “I’ll do your [patient] care for you if you show me your tan line.” At that point another PSW came into the room. H.S. did not say anything but she was shocked because it was behaviour that J.P. had not displayed before. On cross-examination H.S. agreed that the statement by J.P. that he would do her care if she showed him her tan line was made in a light-hearted manner.

[50] H.S. described an incident in June, 2013. She and J.P. had finished transferring a patient using a two person lift. While H.S. was lowering the bed with her back turned to J.P. he pulled up her scrub top from behind exposing her lower back. H.S. asked him what he was doing to which he responded “I was trying to see if your pants were see-through.” She stated that J.P. laughed it off and left to start his distribution of medication to the patients. H.S. went into the soiled laundry room and started crying. While she was in that room a co-worker entered and asked her what was wrong. Although she was hesitant, H.S. did tell her “everything”. H.S. stated that she was friends with J.P. and his wife and did want to get him in trouble. The co-worker advised her to report it. The co-worker did report it to a registered nurse in the facility, however the registered nurse never spoke to H.S. about it.

[51] H.S. reported that J.P. made several inappropriate comments to her on one shift in June, 2013 including that she had “bedroom eyes”, “at least I can look at a pretty girl” and “I’d ask you out if we were both single.”

[52] On one occasion in October, 2013, H.S. related to J.P. that she had received kisses on the hand from two residents as thank you gestures. She indicated that she thought it was sweet. H.S. was bent over her cart when J.P. kissed her on the top of her head. H.S. asked him what he was doing to which he responded “I am giving you one more”. She testified that she did not know what his intentions were, but did not think it was sexual at the time, but it did make her feel uncomfortable. She did agree on cross-examination that J.P.’s comment about giving her one more kiss was made in a light-hearted manner. However, she did not think being kissed by a co-worker on the top of the head was appropriate. Because of the previous incidents she felt embarrassed and anxious again. She felt a range of emotions including shame, anxiety and a feeling of being alone.

[53] H.S. testified that she reported the incidents involving J.P. to D.U., a manager at S[…]. She had attended a mandatory training session on abuse and harassment led by L.G.. During the meeting she started crying which led to a conversation with Ms. L.G. who advised her that she needed to speak to D.U.. Ms. D.U. called her into her office about one week later. D.U. subsequently told her that S[…] was conducting an internal investigation and she was required to attend an interview with her, a union representative, and an investigator from the Region of Waterloo. She subsequently gave a statement to the police.

(d)Testimony of T.B.

[54] T.B. has been employed on a part-time basis as a PSW at S[…] since 2011. At the commencement of her employment she worked on the L[…] floor where she first met J.P.

[55] T.B. stated that on the first shift she worked with J.P. he “dove right in” to her personal life, asking personal questions which made her uncomfortable. He found out that she had recently become separated and had a child. He commented that she was “really hot” and was really good looking for somebody who just had a baby, calling her “yummy mummy.” She subsequently tried as much as possible to avoid any kind of conversation or interaction with him.

[56] T.B. testified that J.P. persisted in making comments about her having a baby and started asking if he could see her stomach to see if she had any scars and on a couple of occasions he tugged at her shirt, trying to lift it up to look at her stomach. T.B. stated that she would move away and ask him what he was doing. J.P. would laugh it off like it was a joke. She stated that J.P.’s tugging at her shirt made her feel “very, very uncomfortable”.

[57] T.B. testified that she had a “half-sleeve” tattoo on one of her arms as well as a tattoo on her upper chest which were visible when she was wearing her V-neck scrub top. J.P. started questioning her about her tattoos, including whether she had additional tattoos and where they were and stated that he would like to see them. He tugged down on her shirt to look at the tattoo on her chest and tried to lift up the back of her shirt and tugged down at her pants to see the tattoo that is on the bottom of her back. She stated that he made numerous efforts to try to see her tattoos in this fashion.

[58] T.B. testified that on one occasion J.P. was behind her and he pulled down the back of her pants “a little bit” and said “I just want to see what kind of underwear you’re wearing.” In doing so his hand came in contact with her skin.

[59] T.B. testified that J.P.’s questioning into her personal life, his commenting on her appearance as well as the tugging down on the front of her shirt, the lifting of her shirt at the back and the tugging of her pants occurred during her probationary period, being the first three months of her employment. She felt very nervous and did not want to say anything to anyone about it because she was still within her probationary period.

[60] T.B. stated that when she reacted to his actions by scowling and asking him not to do those things J.P. would “laugh like it was just a joke.” She stated that his behaviour made her feel very uncomfortable and nervous. His tugging at her pants to see what underwear she was wearing made her feel very uncomfortable, nervous, worried and scared. She stated that it was not something that should be happening at any time to anyone, especially in a workplace environment.

[61] T.B. testified to two occasions in which J.P. followed her into the residents’ rooms. At times that she would be in the bathroom collecting towels and getting ready to do her care on residents and he would stand by the door and “kind of block it off” by extending his arms to the doorframe and look at her or try to have conversations with her that she was not interested in.

[62] T.B. also testified there were times when he would come up behind her when she was in the residents’ bathrooms and would put his hands on her hips and push his groin area into her back. She stated that when he did this she would push him off with her arms, turn around and ask him what he was doing. She stated that J.P. would usually laugh “like it was a joke.” She was unable to give an exact number of times this occurred but stated that it happened more than once. She stated that these incidents occurred within the first four months of her employment. She testified that the incidents made her feel angry and upset because she did not want anyone touching her like that. She described it as “inappropriate.”

[63] T.B. testified that she could not remember with certainty where the incidents involving J.P. pulling her shirt down at the front to look at her tattoo and pulling her shirt up to look at her stomach occurred. She stated that she does remember being in the dining room with other people around when he did one of those things.

[64] T.B. testified that on another occasion she was in a resident’s room. T.B. was changing the resident who suffered from dementia. She was wearing a scrub top that had two strings coming out from either side which could be tied at the back. She stated that J.P. came in behind her while she was performing care and he untied the strings on the back of her shirt and grabbed her hands and tied them with the strings, while quickly pushing her into the bed. He then pushed himself up against her. T,B, was able to get her hands free, turned around and stated “what are you doing?” She stated that J.P. just laughed and walked away. She stated that this incident made her feel awful.

[65] T.B. described another incident in which the electrical power went out on the floor for a couple of seconds during which J.P. groped her, grabbing her chest, her breasts and her buttocks over her scrubs while the lights were out. She recalled J.P. being nearby before the lights went out and did not think that anyone else was around. When the lights came back on J.P. was standing a foot or two away from her. She did not say anything because she was in shock. She stated that she couldn’t believe what had happened. J.P. just walked away snickering and laughing.

[66] T.B. stated that following the power failure incident there were no further incidents of J.P. touching her, however, on one occasion she was in the bathroom of a resident’s room and he made verbal advances towards her. She stated that she got angry and told him if he did not stop she would tell his wife. She was acquainted with J.P’s wife having worked with her at S[…] on a couple of occasions.

[67] T.B. stated that she spoke to the police about the incidents involving J.P. as a result of conversations with K.S., one of the other complainants. They were friends, having taken classes together. K.S. told her that she would be doing a placement for her training at S[…] and that J.P. was to be her preceptor. T.B. told her, without going into detail, to be careful. In the summer following completion of K.S.’s placement K.S. contacted T.B. to arrange to meet. After their meeting T.B. decided to report what had happened to her to D.U..

[68] On cross-examination T.B. acknowledged that she was unable to recall the order in which the various incidents of J.P.’s inappropriate behavior occurred or whether they happened on every shift. She did say that they happened within a very short period of time.

[69] T.B. also acknowledged on cross-examination, that she told the investigating police officer that J.B. came up behind her while she was in residents’ rooms and tied her hands with the strings on her scrub top on a number of occasions rather than just once as she testified in chief. T.B. explained the discrepancy by saying she was scared and nervous during the interview with police. She acknowledged that she had also told the investigator from the Region of Waterloo, about two weeks prior to the police interview, that the incidents involving the strings on her scrub top had happened on a number of occasions.

[70] In regard to the incident involving the power outage, T.B. stated on cross-examination that she did not say anything to J.P. in response to him groping her and did not become loud, whereas in her interview with police she stated “I was pushing him off of me and at that point I did get loud.” She stated that she did not recall yelling because the residents with dementia were there, and in the back of her head she knew that she should not make a ruckus because it would disrupt them. She stated that it was hard for her to remember her response because of the emotions that she was feeling at the time.

[71] On cross-examination T.B. acknowledged, after examining the work schedules, that she may have only worked with J.P. on five occasions. She stated that some of the inappropriate touching incidents which she described took place more than once in a shift.

[72] T.B. stated that there were one or two and perhaps three occasions when she called in sick because she did not want to work with J.P.

(e) Testimony of K.S.

[73] An order was made, on consent prior to the trial, in the context of a defence application under s. 276 of the Criminal Code, that K.S. could be cross-examined on whether she made sexual advances or overtures towards J.P., which could include conversations or requests in relation to engaging in sexual activity with J.P. and/or his wife. The order provided that the answers to those questions could only be used to make findings of fact in relation to whether sexual advances were made by K.S. and not to determine that it is more likely for K.S. to have consented or that she is less worthy of belief on the sexual assault allegations themselves.

[74] K.S. was completing a placement from January to April, 2014 in connection with her training at C[…] College to bridge from being a PSW to a RPN. J.P. was her preceptor during that three to four month period. This involved K.S. following J.P. as he performed his duties on the floor, during which he gave her instruction. He was also responsible for evaluating her performance twice during the placement term. He was the only person at S[…] responsible for completing evaluations of K.S.’ performance.

[75] K.S. testified that within two weeks of the beginning of her placement J.P. began making comments about her appearance – how he liked her hair being down, that he liked how her “bum” looked in her uniform, and how he liked her skin colour. She said that he “progressed” or “escalated” from there. She stated that he would make these types of comments throughout their shift, often coming up close to her and speaking in her ear.

[76] K.S. testified that J.P.’s comments made her feel uncomfortable. She was unsure of how to deal with the situation. She was reluctant to report it as she felt insecure about being able to find another placement to complete her training.

[77] K.S. also testified that J.P. grabbed her by the waist while he said things into her ears, telling her she was “hot” and commenting about her body. She could not recall if he grabbed her rear end. While he was grabbing her waist she stated that J.P’s body from his torso down to his waist was touching her backside. She stated that these actions made her feel uncomfortable.

[78] J.P. told K.S. that there was an exercise room in the basement area which she could use to work out during her breaks if she wished to. He informed her that staff members could pay a membership fee to utilize the exercise room. He offered to show it to her. He escorted her to the basement exercise room. She began running on the treadmill when J.P. pulled his pants down and began masturbating. He asked her to let him watch her run while he masturbated. She told him that it was inappropriate and that people would walk in and see him doing it. J.P. ignored her and continued and ejaculated onto the floor. He cleaned himself up, telling her once she was done exercising she could return upstairs. When asked how the incident made her feel K.S. responded that it made her feel uncomfortable.

[79] K.S. testified that “this stuff is just snowballing, like all of the sudden this is just becoming normal, … and it’s happening a lot.” She said that J.P. routinely said things to her of a sexual nature and he masturbated in her presence in various rooms, including the medication room and the storage room on the C[…] floor. She said that he often grabbed her legs and buttocks at the nursing station. She said that she felt uncomfortable and kept telling him to stop, that people would see him. She said that she was always afraid of losing her placement if anyone saw what was happening. She indicated that she did not want to be on bad terms with him. She stated that J.P. would take it like it was a joke and continue with the behaviour.

[80] K.S. described an incident in which J.P. told her that he wanted to go downstairs to the basement storage room to masturbate and asked her to go down there with him. She testified that she did not know why she went with him but it was just becoming a routine thing. She recalled that J.P. pulled his pants down and began masturbating. He asked her to lift her shirt up as he said it would be faster if she did so. She said he was standing three to four metres away from her. She lifted her shirt to expose her breasts as he had requested. She indicated that during the entire incident she was panicking, worried that someone would come into the room and see them.

[81] She testified that J.P. began coming closer and asked her if she would pull her pants down a bit so that he would be able to go faster. He kept saying “just a few more seconds” and he would be done. He then asked her if he could position himself behind her and to face the wall. She told him that she did not want him putting his penis in her and he told her not to worry, that he would not do so. She stated that she told him “a few times” not to put his penis in her. He went behind her as she was standing facing the wall with her pants down. She testified as follows:

“I don’t recall when it happened but he-he shoved his penis in me and I just-I just remember that I wasn’t even going to speak up. I just felt like-like I blacked out a bit so I didn’t say anything and I-I just remember-I just remember that I-like everything just kind of went silent and then I didn’t know, I couldn’t speak up. And he was-I don’t-I can’t recall, it felt like a few seconds or how long it was and then-and then he was done and then I just remember he ejaculated on the floor.”

[82] When asked what her reaction was when she felt J.P.’s penis inside her she responded that she “blanked out” and was shocked. She thought about the fact that he was “in her” without any kind of protection and the risks that he could have a sexually transmitted disease. After he ejaculated she asked him why he put his penis in her and he did not respond. He then wiped the floor with Clorox wipes. She recalled there being a container of Clorox wipes in the storage room.

[83] She stated that the two of them returned upstairs, went to separate bathrooms and afterwards met at the nurses station. While he was sitting at the nurses’ station she asked him why he put his penis in her and he would not answer her. She said he had ”like a smirk” on his face. K.S. testified that she finished her shift and did not want to go home because she was thinking about her boyfriend. She did not tell her boyfriend nor anyone else. She stated “just the way everything unfolded I was embarrassed and ashamed.”

[84] She stated that after the incident in the storage room J.P. never tried touching her again nor did he say anything to her of a sexual nature.

[85] K.S. testified that J.P.’s mood would fluctuate and when he was in a bad mood he was hard to work with. Sometimes he would not help her when she asked him questions and she sometimes felt that she wasn’t able to freely ask him questions. She described it as “walking on egg shells”.

[86] K.S. stated that many of the incidents involving J.P. making sexual comments to her, grabbing her and masturbating in her presence occurred before he completed her midterm evaluation. She was not able to say whether the incident which she described in the basement storage area occurred before or after the first evaluation was completed.

[87] K.S. testified that some four months after she completed her placement at S[…] she attended a medical clinic to be tested for sexually transmitted diseases, advising the clinic that there had been a sexual encounter at work. In the same time period she told her boyfriend all of what happened, although she could not say whether she did so before or after she went to the clinic. She did not tell anyone prior to that as she felt ashamed and embarrassed. Her boyfriend pressed her to report what had happened and she was reluctant to do so. At the urging of her boyfriend she spoke to T.B. and shared with her what had happened. She had attended a class at college with T.B. Prior to her placement T.B. had warned her by text message to be careful when she learned that J.P. would be her preceptor, although she gave no further details. As a result of her boyfriend’s continued pushing, K.S. called the police to report the incidents.

[88] In addition to giving a statement to police K.S. also attended an interview at S[…]. She also spoke to her college supervisor, although she did not tell her that she had been sexually assaulted. She just suggested that the college not have J.P. act as a preceptor to a woman student in the future.

[89] On cross-examination K.S. denied having made any comment or complaint about the staff failing to properly feed several of the residents who appeared to be not well-nourished.

[90] She also denied ever going to the basement storage room with J.P. to access supplies. She stated that the only time she went to that room with him was the time the sexual incident occurred.

[91] When it was suggested on cross-examination that she was not afraid to stand up and speak her mind to J.P., K.S. responded that there were times she felt that if she questioned him she would get in trouble due to fluctuations in his mood. She repeated that she felt that she was walking on egg shells.

[92] In her statement to police she stated “like I talk back to him. And it’s not because of what was happening with it, us, but it’s because I’m a person. If I don’t understand it, why can’t I ask? And I guess apparently people don’t ask, people don’t talk back to [J.P.]” She explained that when she told the police officer that she talked back to him she meant that she was “clarifying” things that she did not understand. She stated that she “fluctuated” in her ability and strength to ask J.P. questions or to clarify things. She acknowledged that she did not mention that to police but did not agree with the suggestion that she never had any difficulty speaking back to J.P.

[93] K.S. acknowledged on cross-examination that she reported to her supervisor in March, 2014 about what she considered to have been elder abuse on the part of J.P. by yelling at and grabbing a resident.

[94] On cross-examination K.S. denied suggesting that J.P. and his wife engage in a “swinging” sexual relationship with her and her boyfriend. She also denied suggesting to him that the two of them at some point would go to a hotel room for a sexual encounter. She did say that they had a conversation about safe sex and how condoms are important for protection as well as having a clean environment like a hotel, a home or a bed.

[95] Defence counsel put to S. K. a statement that she had given to police “at that point because he had asked me a few times and I casually said it but yeah, we could talk about that with a condom or something.” Although she could not really recall saying that to the police officer she acknowledged that she had done so. She suggested that she was speaking in general about the importance of condoms and denied that she was referring to the possibility of having sex with J.P. provided that he used a condom.

[96] K.S. also denied telling J.P. that they would “hook up” in the future.

[97] When it was suggested on cross-examination that she contacted J.P. in July or August she initially said she was unsure and when pressed, she acknowledged that she had done so. She stated that she called or texted him to convey to him that she did not intend to report him for what had occurred. However, when she called him she never mentioned the issue. She stated “it was more for me to let him know that-I guess too, that I wasn’t going to report him but not-I didn’t have to say it to him. But it was just more like I got a job somewhere, just so he knew that like I’m not going to use it-what it happened between us, against him.” K.S. agreed that she had never threatened to report him. She stated that “when I called him it was more to have him understand that I wasn’t going to pursue anything. I know I didn’t state it literally but it was just so he understood that this is-because I know it was weighing on his head as it was weighing on mine because we never discussed it.” She could not recall J.P.’s response to her communication.

[98] K.S. related an incident during her placement when she noticed a “breakout” on J.P.’s lip that she said made her sick to her stomach. She asked him what it was. She could not recall whether she mentioned herpes. She said that J.P. downplayed the matter, saying that he had bit his lip and walked away. She said she started getting concerned again that she may have acquired a sexually transmitted disease from him.

[99] K.S. stated that she had no recollection of attempting to contact J.P. on Facebook or having any conversation with him on Facebook. She also denied attempting to contact him after she received notification that she had passed her nursing exam.

[100] K.S. told the police that she felt bombarded by what everyone was telling her to do after she had disclosed what had happened with J.P. She said that she knew what had happened was wrong and she just didn’t want to deal with it. She denied that her boyfriend was putting pressure on her to report the matter and denied that was the reason she reported it to police.

Defence Evidence

(a) Testimony of J.P.

[101] J.P. commenced his employment at S[…] as a RPN in October, 2006. He began on a part-time basis and subsequently transitioned to full-time. He worked on the C[…] floor of the home for approximately three years, first part-time and then full-time.

[102] J.P. worked with L.H. on the C[…] floor for approximately six months in 2013 or 2014. L.H. was employed as a part-time PSW. When asked to describe his relationship with L.H. J.P. advised that she needed direction as she was inexperienced. He described their relationship as neither friendly nor unfriendly but professional.

[103] J.P. stated that he received numerous complaints about L.H.’s conduct involving failing to wear gloves and poor hand hygiene, failure to wear protective equipment in the isolation rooms, and what he classified as “illegal” transfers of residents involving utilizing a two-person ceiling lift on her own.

[104] J.P. spoke to L.H. about her improper use of the two-person lift and although he did not threaten that she would be fired, he did advise her that he had experienced workers losing their jobs for failure to follow the rules.

[105] He also spoke to her about the need to wear gloves and to wash her hands while providing care for patients to which she responded “I’m from a farm. It doesn’t bother me”.

[106] J.P. denied making any comment to L.H. regarding her breasts or her rear end and stated that she never complained that he was saying improper things to her.

[107] He also denied coming up to her and placing his hands on her hips.

[108] J.P. testified that L.H. touched him in ways that bothered him. He stated that she smacked his buttocks while he was walking past her and she played with his left earring on one occasion. When J.P. asked her what she was doing she responded “I’ve wanted to do that since the day I met you.” J.P. said “now that you have done it, you don’t have to ever do it again.”

[109] J.P. denied that he never said anything sexually inappropriate to L.H. nor did he ever touch her in a sexual way.

[110] J.P. said that he worked with L.B. for only one part-time shift. He indicated that a PSW on a 2 p.m. to 10 p.m. shift had gone home sick and L.B. was brought in to replace her shortly after 5 p.m..

[111] He denied that he ever blew on L.B.’s neck or that he intentionally rubbed up against her in a sexual manner. He denied that he ever grabbed her buttocks, nor did he press his genitals against her. He had no recollection of her saying something to the effect of “this is not my first rodeo”.

[112] J.P. confirmed that he worked with H.S. on the C[…] floor. He described their relationship as very friendly, utilizing nicknames for one another. She never complained to him about their relationship.

[113] H.S. was fond of giving hugs to coworkers. She would hug J.P. almost daily. She would give him a hug when she arrived for her shift and would often hug him at the end of the shift. He observed her hugging other co-workers as well.

[114] J.P. related an incident in which H.S. showed him pictures from a recent vacation. She commented on one picture which depicted a monkey on her shoulder. She was wearing a swimsuit. J.P. stated that the two of them often compared pictures on their phones including vacation pictures.

[115] J.P. stated that he did recall discussing H.S.’s tan during the incident in which she was showing him her vacation pictures. She commented that she was very fair skinned and lost tans rapidly. He had no recollection of saying “tan lines are sexy”. He had no recollection of ever touching her shirt for the purposes of seeing her tan lines and denied that he ever said that he would help her with her work if she showed him her tan lines.

[116] J.P. described an incident in which H.S. approached him while he was handing out medications to patients and told him that she’d received kisses from two residents for giving them cookies. She offered him cookies and coffee. While handing them to him she bent down to put the wrapper on the bottom of the tray on his cart and he kissed her on her hair on the crown of her head and said “there you go - you have one more.” He stated that she did not seem upset about having received two kisses from residents, nor did she seem upset about the fact that he had kissed her on the top of her head. She made no comment to him about it.

[117] J.P. denied that he ever touched H.S in a sexual way. He confirmed that he had a conversation with H.S. about the sheerness of her pants. He noted that the material was thin and her dark panties were visible. He told her that it might be time to retire her pants because they were sheer. He denied touching her in any way during that conversation. H.S. told him that the pants were old and had been given to her by someone, and acknowledged that maybe it was time to retire them. J.P. indicated his belief that they had a subsequent conversation about H.S.’ pants with another employee in the communication centre. H.S. asked that employee if she thought her pants looked too thin. J.P. could not remember the identity of that employee.

[118] J.P. had no recollection of touching H.S.’ pants or any other part of her clothing when making his comments about her pants.

[119] J.P. denied coming up behind H.S. and pulling her shoulders back. He did say that he often corrected posture to staff members and taught proper body mechanics to avoid injury. He was aware that she had complained on many occasions about having had injuries.

[120] J.P. stated that he was “pretty sure” that he could recall an incident in which he spoke to H.S. in the hallway about her posture. He believed that another staff member was present but could not recall who it was. He told H.S. that proper posture involved keeping her shoulders back to prevent soreness in the base of her neck. “Shoulder back, chest out is the proper body alignment” was the terminology that he used. Although he could not recall touching H.S., if he did so on that occasion, there was nothing sexual in his intention in doing so.

[121] J.P. confirmed working with T.B. for a couple of shifts on the L[…] floor at S[…]. Both of them were employed on a part-time basis at that time.

[122] J.P. denied having discussions with T.B. about her family relationships. He did know that she had a child however did not know if it was male or female.

[123] J.P. denied ever calling T.B. “yummy mummy”, or saying anything to the effect that he could not believe that she was a mother. He denied ever asking her to show him her stomach and denied ever pulling up her shirt to look at her stomach or attempting to do so. He could not recall witnessing her pulling up her shirt to expose her stomach. He denied ever trying to tug down on her pants, or ever telling her that he wanted to see what kind of underwear she was wearing. When asked if he ever commented about her underwear stated “no, I’ve never seen her underwear.”

[124] J.P. denied ever coming up behind T.B. and putting his hands on her hips and denied ever intentionally rubbing up against her in a sexual way. He also denied ever coming up behind her, grabbing or holding her hands or arms behind her back or trying to tie her hands with a string from her top.

[125] J.P. stated that he had no recollection of experiencing the power going out on the floor at S[…]. He did not recall any incident when there was a flickering of lights. He denied that there was any incident when the lights went out during which he touched her breast, stomach or buttock area.

[126] J.P. testified that, to his knowledge, S[…] was equipped with an emergency generator and had emergency back-up lighting. However, since he had never experienced a blackout on the job he never saw the backup lights come on.

[127] J.P. stated that it was a job requirement for him to assist PSW’s with two-person transfers, two-person changes and other types of care. In doing so he denied ever trying to block any PSW in a room and denied ever attempting to position himself so that a PSW would have to bump or rub up against him as they were walking by. He stated that the door openings were large enough for a bed to fit through. He denied ever putting his arm across a doorway in an effort to block any of the PSW’s.

[128] J.P. confirmed that he acted as a preceptor for K.S. for a 12 week period commencing January, 2014.

[129] J.P. testified that his reports on her placement consisted of his observations of her skills, checking off that he had seen her perform various tasks and that she could competently perform them on her own. He said he was not responsible for giving her a grade or marks. He denied that he had any control or influence on whether she passed or failed her program.

[130] J.P. had acted as a preceptor for other students from C[…] College prior to K.S.’ placement. As with all students, he followed the same general routine on K.S.’ first shift by introducing her to the environment by giving her a tour of the entire facility.

[131] J.P. stated that when he first started working with K.S. they got along reasonably well. She asked a lot of questions which he found to be an important aspect of her education. However, on one occasion he became annoyed with her when she contradicted him regarding a patient’s diagnosed skin condition. He never sensed that she was afraid to talk back to him.

[132] J.P. denied ever grabbing K.S. in a sexual way, grabbing her buttocks, masturbating in her presence, or ever having any sexual involvement with her by touching her sexually. He denied ever attempting to touch K.S. sexually or asking her if he could do so.

[133] Other than showing K.S. the exercise room in the basement of the building during their initial tour of the facility, J.P. denied attending with K.S. to that room. On the initial tour he simply opened the door to allow her to have a look and they did not enter the room. He said that K.S. never made a request of him to be let into the exercise room.

[134] J.P. indicated that the exercise room was available 24 hours a day to all staff members of the entire facility who had paid a membership fee.

[135] J.P. testified regarding the practice and protocol for access to and use of the medication room. The medication room was kept locked and could only be accessed by registered staff members, being RN’s, RPN’s and managers. When registered staff members were conducting a count of medications on the cart in the medication room, the door to the room would be open.

[136] During K.S.’s placement she was involved with counting medications, including narcotics, as part of her training. She sometimes did this with J.P. and sometimes with a nurse coming on shift or a nurse coming off a shift. Narcotics are required to be counted jointly at the beginning and end of each shift by the nurse coming off shift and the nurse coming on shift. J.P. stated that at no time was he ever in the medication room with K.S. with the door closed.

[137] J.P. could not recall ever being with K.S. in the storage room located on the C[…] floor and denied engaging in any touching or sexual activity with her there.

[138] J.P. described the storage room in the basement of the building. Various supplies were stored in that room. The basement storage room was for the use of the entire facility comprising 12 wings, the staff of which would all have access to it. He indicated that he accessed the basement storage room at least twice a week.

[139] J.P. confirmed that he went to the basement storage room with K.S. to access supplies on numerous occasions. However, he denied ever going to that room with her to engage in any sexual conduct. He denied having intercourse with her in the storage room. He denied ever asking her to show her breasts or her vaginal area in the storage room, and denied ever asking her to pull down her pants or to undress any part of herself in his presence. He denied removing or pulling down his pants or opening his zipper in her presence.

[140] J.P. also denied that S[…] stocked Clorox wipes.

[141] J.P. denied ever suggesting having sex with K.S. or asking her for sex. He had no recollection of any discussions about the use of a condom, and no recollection of her saying to him that she would possibly have sex with him in the future provided he wore a condom.

[142] J.P. did testify that K.S. raised the issue of having sex with him. He believed that this occurred five times. The first time occurred when they were walking in the hall with the medication cart and she was administering medications. They were talking about his newborn son and he showed her a picture of his wife holding their baby. K.S. stated that her fiancé would like his wife as she was “his type” and she invited J.P. and his wife to have some sort of a group sexual activity. She talked about a swinger’s club in Mississauga that she attended. J.P. responded by saying “Thanks anyway. No”.

[143] J.P. stated that subsequently K.S. said to him that if he was not interested in the “group thing” he could go with her to a hotel room. She made this suggestion four times to which he responded “Thank you. No.”

[144] J.P. testified that when she was saying her goodbyes at the end of her twelve-week placement K.S. said to him “I know you and I are going to hook up. I’m going to look you up on Facebook and we are going to go to a hotel. I know that. I bet you.” He responded “Thanks for the offer, but no thank you.”

[145] J.P. denied having an outbreak, cut or open sore in his mouth area and denied that K.S. ever pointed this out to him or asked him what it was.

[146] J.P. testified that about two weeks into her placement K.S. told him that she had observed that four female residents were not being properly nourished and that all of the staff should be charged with neglect for not forcing them to eat. He cautioned her about making these allegations because they were very legally charged.

[147] J.P. also testified that K.S. made a complaint about him inappropriately dealing with a patient. He found out about the allegation in November, 2014. She never told him that she intended to make a complaint about him.

[148] J.P. stated that following completion of K.S.’ placement in April, 2014 he heard from her on three or four occasions, by telephone calls and text messages. He indicated that the first contact was a telephone call from K.S. at least one month after completion of her practical nursing program at C[…] College. They talked about a cruise that she had taken following completion of her placement. He stated that she later communicated with him about getting a job in the nursing field. He believed that this communication was by text because he recalled responding to her by texting “congratulations”.

[149] J.P. testified the final communication from K.S. occurred in September, 2014. He received a Facebook “friend” request from her. He responded by blocking her on his cell phone and on Facebook. He did this because of her earlier statement that she would look him up on Facebook to go to a hotel and have sex. He definitely did not want his wife, who he shared in the Facebook account with, to see this kind of communication.

[150] When asked on cross-examination what his reaction was when L.H. touched his earring, which he described as “flicking”, J.P. said that he was “disgusted.” He indicated that this was possibly because he had previously observed her poor hand hygiene. He said that he did not report L.H. having touched his earring because it was not a reportable offence. He did report L.H. to a supervisor for not wearing gloves and for not wearing a gown in the isolation room. He indicated that multiple staff had reported the same concerns about L.H. to him on the same shift.

[151] J.P. acknowledged on cross-examination that he had played a “tattoo guessing game” with L.B. and that she had shown him tattoos, however he maintained his denial that he had touched her or pulled on her top or pants to look at her tattoos.

[152] J.P. was been interviewed by Brent Richardson, an investigator for the Region of Waterloo. An order was made on consent prior to the trial, that the statements made by J.P. to Mr. Richardson were voluntary. Mr. Richardson did not audio or videotape the interview, nor did he have J.P. sign a written statement, but rather he prepared a summary of the issues discussed relating to the allegations made by the complainants and J.P.’s responses to those issues. He indicated that he prepared the summary very shortly after the interview from notes that he took during the interview and, although the summary did not represent J.P.’s verbatim statement in all respects, he attempted to capture the statements that J.P. had made as accurately as possible.

[153] In reference to the allegation that he had pulled down H.S.’s top to see her tan line Mr. Richardson had recorded that J.P. responded “tan lines? Don’t know. Did she say I did? If she said I did, then it’s likely I did. She is an honest person and wouldn’t sandbag me.” Mr. Richardson noted in his summary that J.P. acknowledged that in hindsight it was inappropriate. J.P. recalled on cross-examination having talked to Mr. Richardson about the tan line situation but maintained that he could not recall moving H.S.’ shirt to see her tan lines.

[154] Mr. Richardson made a note in reference to the tan line incident with H.S. that J.P. had said “looking back I would like to change a number of things.” J.P. acknowledged making that comment but maintained that what he meant was that he definitely would not have been as close a friend with H.S., would not have kissed her on the head after she gave him the cookies and coffee and would not have let her hug him when coming and going.

[155] On cross-examination J.P. maintained that L.H. had touched his buttocks approximately a dozen times. He said that he told her “stop touching – stop hitting my butt.” He told her that on each occasion that she slapped his buttocks and the behavior eventually ceased.

(b)Testimony of A.T.

[156] A.T. commenced her employment as a part-time PSW at S[…] in 2008. She worked with J.P. from around 2012 to 2014 on the C[…] floor. She stated that they were friends in the workplace, but not outside of work.

[157] Ms. A.T. worked four 2 p.m. to 10 p.m. shifts and two 4 p.m. to 11 p.m. shifts in each two-week period.

[158] Ms. A.T. stated that J.P.’s behaviour at work was professional and friendly. She described him as a good leader on the floor.

[159] Ms. A.T. indicated that she worked on the floor with H.S. and briefly with L.H. Although she knew of both L.B. and T.B., she never worked with either of them. She stated that she never saw J.P. inappropriately touch either L.H. or H.S. Neither of them made any complaint to her that he had been sexually inappropriate to them. She stated that she could recall no instances of J.P. making any uncomfortable or inappropriate sexual comments involving H.S., L.H. or herself. The only comments that she heard him make about the physical appearance of either H.S. L.H. or herself was if one of them had a new haircut.

[160] Ms. A.T. testified that she observed L.H. inappropriately hitting J.P.’s buttocks. She also heard L.H. make a comment to her about J.P.’s buttocks saying “don’t you think he has a nice ass?” She also observed L.H. flicking or touching J.P.’s earring. J.P. responded by making a face, walking away and taking out his earring and washing and sanitizing it. She described him as a “germaphobe,” often wearing gloves and frequently washing his hands, and indicated that he did not like being touched and did not like to touch others.

[161] Ms. A.T. described H.S. as being fond of hugging all of her co-workers before she went home at the end of her shift. The only physical contact that she observed between J.P. and H.S. was her hugging him and her rubbing his shoulders while he was at his computer.

[162] Ms. A.T. worked on the C[…] floor during K.S.’s placement and was in a position to observe how they worked together. She indicated that they argued a lot and described K.S. as argumentative. K.S. never appeared afraid of J.P. Ms. A.T. never observed any inappropriate touching between K.S. and J.P.

[163] On cross-examination Ms. A.T. acknowledged that, although she worked with J.P. on every one of her shifts, because she was part-time and he was full time, she was not on duty on all of his shifts. She also acknowledged that when she was working with L.H. and H.S. she was not together with them at all times.

[164] Ms. A.T. stated that after J.P. left his employment at S[…] she spoke with him on two occasions. On the first occasion she was concerned that she had not seen him at work. She spoke with him for approximately 10 minutes. On the second occasion she called him to ask if he needed anything or what she could do to help. The second conversation lasted approximately one half hour. J.P. spoke to her about the investigation regarding the complainants’ allegations during the second conversation.

Analysis

(a) Preliminary Issue – Similar Fact Evidence in Respect of Counts One Through Four

[165] The Crown brought an application prior to trial for a ruling that the evidence on counts one, two, three and four relating to the complainants T.B., H.S., L.H. and L.B. should be admissible as similar fact evidence on each of the others. The evidence relating to the complainant K.S., being count five, was not included in the similar fact evidence application. No issue was taken by the defence to the similar fact application being argued during final submissions, rather than at the conclusion of the Crown’s case.

[166] It is well known that similar fact evidence is presumptively inadmissible. This presumption is based on a concern that the evidence may rest on the propensity or disposition of the accused and lead to a conclusion that it is more likely that the accused is guilty of a current offence simply because he or she previously exhibited the same or similar conduct (see R.v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908 (S.C.C.)).

[167] In order to obtain admission of other discreditable conduct the Crown must establish on a balance of probabilities that, in the particular case, its probative value in relation to a particular issue outweighs its potential prejudicial effect and thereby justifies its reception (see Handy at para. 55).

[168] In carrying out the process of balancing the probative value of the proposed evidence against its prejudicial effect, the court should enquire into the following matters:

(a) Is the conduct, which forms the subject matter of the proposed evidence, that of the accused?

(b) If so, is the proposed evidence relevant and material?

(c) If relevant and material, is the proposed evidence discreditable to the accused?

(d) If discreditable, does its probative value outweigh its prejudicial effect?

(see R. v. L.B.; R. v. M.A.G. 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.) at para. 10)

[169] The Crown advised in submissions that it was seeking admission of the similar fact evidence in respect of counts one through four to establish actus reas, mens rea and modus operendi in respect of the alleged offences.

[170] The first three factors identified in R. v. L.B.; R. v. M.A.G. are satisfied. The conduct forming the subject matter of the evidence of the complaints T.B., H.S., L.H. and L.B, was clearly that of the accused. Their evidence is relevant and material to the issues of actus reas, mens rea and modus operendi and is discreditable to the accused.

[171] The question is therefore whether the probative value of the evidence outweighs its prejudicial effect.

[172] In my view the probative value of the evidence of the four complaints under consideration is high. The factors which lead to this finding include the following:

a). All of the incidents which the Crown alleges constitute sexual assaults by the accused and all of the accused’s surrounding sexualized behavior towards the complainants are alleged to have taken place in the same workplace.

b). Each of the complainants were subordinates of the accused in the workplace and he was in a position of authority over them.

c). All of the incidents involved uninvited spontaneous touching by the accused.

d). L.H., L.B. and T.B. each testified that the touching was preceded by the accused making unsolicited remarks about features of their bodies with a sexual connotation.

e). Three of the complainants L.B., H.S. and T.B. described the accused, after being challenged or confronted by them, smirking or treating the incidents as a joke.

f). Two of the complainants L.B. and T.B. testified that, when they responded by threatening to report J.P., his offensive conduct stopped; and

g). There was no evidence of any animosity maintained by any of the complainants towards J.P. prior to the incidents, and with the possible exception of L.H., there was no evidence of any reason for any such animosity developing or existing. There was nothing in the evidence to suggest in any way that L.B., H.S. or T.B. had any motive to fabricate the allegations. L.H. may have had a possible motive to fabricate by reason of J.P. having spoken to her about her improper use of a lift and failing to wear gloves and properly wash her hands and reporting her to a supervisor.

[173] In my view the evidence of the four complainants under consideration demonstrates a pattern of behaviour by J.P. showing a commonality to the actus reas of the alleged offences against each of them, based on a pattern, and demonstrates a specific propensity on his part to touch the complaints inappropriately and to invade their personal space in the workplace. The quality of the evidence and its similarity to the matter under consideration is such that it would be an affront to common sense to suggest that the similarities were due to coincidence in the absence of collusion. (see. R. v. L. (R.E.) 2013 ONSC 6292 (S.C.J.) at paras. 40 and 42). The only potential for collusion would exist between L.H. and L.B., however the evidence falls short of showing that there was any improper collusion between them in fact.

[174] It must be remembered that “prejudice” on an enquiry into the prejudicial effect of evidence is used in the legal, procedural sense. The enquiry does not focus on the effect that the evidence may have on the outcome of the trial; that is, on how powerful it is for the prosecution, but rather on its effect on the right of the accused to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unfairly (see Handy at para. 139 and R. v. S.G.G.1997 311 (SCC), [1997] S.C.J. No. 70 (S.C.C.) at para. 100).

[175] Any possible risk of prejudice or unfairness to J.P. relates to the potential for the fact that the four complainants have made complaints of sexual assault to lead to a conclusion that the allegations must be true and reliable simply by reason of their having been made, thereby overshadowing whatever frailties there may be in their evidence when considered individually. This potentially risks improperly casting the onus on J.P. to explain away the fact that there are four complainants making similar allegations. There is no such duty on J.P. as the onus of proof remains throughout on the Crown.

[176] Given that this is a judge-alone trial, the risk of prejudice is mitigated as I am able to avoid the risk of moral or reasoning prejudice and to consider whether the Crown has met the burden of proof relative to each charge in the indictment separate and distinct from the other. I am also able to instruct myself that the similar fact evidence itself cannot bear the burden of proving the Crown’s case on its own beyond a reasonable doubt with respect to the separate charges (see R. v. L. (R.E.) at para. 102).

[177] In my view the probative value of the evidence of the four complainants under consideration outweighs any prejudicial effect which would result from its admission. The Crown’s application is therefore allowed and the evidence on counts one, two, three and four relating to the complainants T.B., H.S., L.H. and L.B. shall be admitted as similar fact evidence on the others of those four counts.

(b) Analysis of Each of the Counts in the Indictment

[178] It is noted that in reference to each of the counts in the indictment, the defence position is straightforward – the incidents that form the subject matter of the charges in the indictment never happened. The Crown led no evidence directly corroborating the allegations made by any of the complainants. No other persons were present when the incidents were alleged to have occurred. In respect of each count, the resolution of the matter comes down to a question of credibility of the complainants, and, since he testified, J.P’s credibility, supported by the evidence of the other defence witness A.T.. However, as previously stated, a finding of guilt must not be based on a choice between the evidence of the accused and the Crown's evidence, as such an approach would undermine the presumption of innocence. The outcome is to be determined based upon the application of the principles in W. (D.).

[179] As noted by Code, J. in the case of R. v. Thomas 2012 ONSC 6653 (S.C.J.) at para. 23, W.(D.) does not describe three sequential analytical steps that a trier of fact must pass through, but rather describes three distinct findings of fact that a trier of fact can arrive at when considering all of the evidence at the end of the case. At paragraph 24 he stated as follows:

A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[180] The Court of Appeal has stated that “the considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused’s evidence as is a rejection based on a problem identified with the way the accused testified or with the substance of the accused’s evidence” (see R. v. D. (J.J.R.) (2006) 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53).

[181] In the recent case of R. v. R.A. 2017 ONCA 714 (C.A.) the Court of Appeal found that the trial judge in that case was entitled to reject the accused’s evidence based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence even where the accused had been found to have testified in a straightforward manner, was not evasive, did not exaggerate, embellish or colour his evidence and “withstood cross-examination without blemish.” Writing for the majority, Huscroft, J.A. stated at para. 55: “the appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant’s evidence, but nor did he reject it simply because he accepted the complainant’s evidence.”

[182] I propose to deal first with count five relating to the allegations involving the complainant K.S. as those allegations were different in character than those relating to the other complainants, and did not form part of the similar fact evidence ruling.

(i) Count Five re Complainant K.S.

[183] As stated, the alleged conduct upon which the Crown relies as supporting count five was J.P.’s penetration of K.S. with his penis during the alleged incident in the basement storage room, after she had repeatedly told him not to. The other alleged sexual conduct involving J.P. having masturbated in the presence of K.S. in various places in the S[…] facility, and the other incidents of touching described by K.S. did not form part of the charge in the count.

[184] In relation to the allegations of K.S. I find that J.P.’s testimony was straightforward and non-evasive. His evidence that the sexual conduct which K.S. described in her evidence simply did not occur was not undermined on cross-examination. His explanations of the ways in which he and K.S. interacted as preceptor and student and of the routines and practices in the workplace made sense. As occurred in R. v. R.A. J.P. “withstood cross-examination without blemish” in relation to the allegations involving K.S.

[185] However, unlike R. v. R.A., a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence, so as to support a rejection of J.P.’s evidence, is not possible based upon a consideration of the the uncorroborated testimony of K.S.

[186] In the case of Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 at 356-7 (B.C.C.A.) O’Halloran J.A. recommended an approach on how best to resolve issues of credibility involving an inquiry into the consistency or harmony of the two conflicting stories with the surrounding circumstances, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.

[187] The totality of the evidence depicted S[…], and in particular the C[…] floor, as a busy workplace with relatively constant activity involving PSW’s providing regular care to residents, residents being transferred to the dining room for meals, meals being served, medication being dispensed, physiotherapists attending to provide treatment and volunteers and visitors attending. A significant number of the residents on C[…] required two-person care and to two-person lifts which contributed to the workload of the staff. A.T. described J.P. as a “good leader on the floor” and “professional.” None of the other complainants suggested that J.P., in his role as the RPN on the floor, was anything other than conscientious and dedicated. The suggestion that J.P. and K.S. would absent themselves regularly to engage in sexual activity at various locations on the floor and in the building, or would be able to do so without being observed or missed by other staff, is not plausible.

[188] The exercise room and the basement storage room were public spaces accessible at all times to all staff of the facility, the exercise room being limited to staff members who had paid a fee and were in possession of a key. There is no evidence that J.P. and K.S. took any measures to prevent or hinder access to those spaces by other staff while they engaged in the activity described by K.S. Other staff members could have easily walked in while J.P. and K.S. were engaging in the activity. The suggestion that J.P. took K.S. to these public spaces, where they could easily be discovered or observed, in order to masturbate in her presence, is not in “harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.”

[189] There were other problems with K.S.’s testimony. These include the explanation of her reason for contacting J.P. some months after completion of her placement term. She could not remember if she “messaged him” or called him by telephone, but said she did so to have him understand that she was not intending to report him for the sexual assault. However, she never communicated this to him.

[190] The suggestion that K.S. contacted J.P. to get across to him that she did not intend to report him while saying or alluding to nothing about that to him is not plausible. K.S.’ testimony regarding her attempts to contact or actually contacting J.P. in the months following the completion of her placement was equivocal, confusing and unconvincing.

[191] The insistence by K.S., in her testimony, that she was often afraid to talk back to or ask questions of J.P. and that she was frequently “walking on eggshells” with him is hard to accept, particularly in light of her statement to police that she was not afraid to talk back to him and ask him questions, while other people were. Her explanation that what she meant by the statement was that she was “clarifying” does not ring true. Her insistence that she was often afraid to talk back or question J.P. also conflicted with the evidence of A.T. that K.S. was argumentative and that she observed the two of them frequently arguing.

[192] Based on a consideration of the totality of the evidence relating to count five I am left with a reasonable doubt as to the accused’s guilt in reference to the allegations of K.S.. I am unable to resolve the conflict in the evidence and am left in a state of indecision or uncertainty. (see R. v. J.E. , 2012 ONSC 3373 (S.C.J.), per Code, J. at para. 20). In these circumstances, applying the principles in W. (D.) there must be a finding of not guilty in relation to count five.

[193] I propose to deal with the remaining counts in the order in which the complainants testified at trial.

(ii) Count Three re Complainant L.H.

[194] As indicated, the Crown advised in submissions that the conduct of J.P. that it relies upon as constituting a sexual assault under count five is the allegation that he leaned over L.H. from behind, placing his hands on her hips and pressed his body against hers as she was providing care to a resident.

[195] J.P. denied that this incident occurred, and also denied that he ever made sexualized comments to L.H. about parts of her body. He maintained that any sexualized behaviour between them was on her part by repeatedly patting his bottom and by touching his earring and telling him that she had wanted to do that since she first met him.

[196] Based upon a consideration of all of the evidence, including J.P.’s outright denial that the incident relied upon by the Crown occurred, I am not left in a reasonable doubt that J.P. did lean over L.H. from behind, placing his hands on her hips and pressing his body against hers in a resident’s room. I make this finding based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence. The conflicting credible evidence consists not only of L.H.’s evidence that the incident occurred, which was not undermined or successfully challenged on cross examination, but also on the evidence of T.B., H.S., and L.B. that J.P. had a propensity to and did engage in uninvited and spontaneous touching of PSW’s under his supervision and to invade their personal space in the workplace. I do not find that L.H.’s allegations must be true and reliable simply by reason of similar allegations having been made by the other complainants, but rather by reason of the content and strength of the similar fact evidence given by those complainants when considered in conjunction with L.H.’s evidence, and the reliability of that evidence when considered individually. The credibility of T.B., H.S., and L.B. is supported by the absence of any motive to fabricate on their part. The presence or absence of a motive to fabricate is a factor which may be considered in assessing credibility, provided that any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate is avoided (see R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No. 2184 (C.A.) at para. 121).

[197] I do not find A.T.’s evidence to be helpful as she acknowledged that she was not in a position to observe interactions between J.P. and L.H. and T.B. at all times.

[198] I am not however satisfied that the Crown has proven beyond a reasonable doubt that J.P.’s conduct in placing his hands on L.H.’s hips and pressing his body against hers constituted a sexual assault in that it was committed in circumstances of a sexual nature, such that L.H.’s sexual integrity was violated. L.H. described the contact as very brief and that J.P., having placed his hands on her hips, did not move his hands. His upper torso and not his lower body was touching her back. His leaning into her and placing his hands on her hips was accompanied by an offer of assistance in the care of a resident and was not accompanied by verbalizing or other conduct of a sexual nature. In her statement to police L.H. stated that J.P. did not touch her sexually. At trial she maintained that it was “sexual in my eyes.” No explanation was offered by her for the change from her not considering the touching to be sexual when she spoke to police and viewing the contact as sexual at the trial.

[199] The fact that L.H. felt uncomfortable following the touching, as she testified, is not inconsistent with a finding that the touching was not a sexual assault. It is equally consistent with J.P. having inappropriately invaded L.H.’s personal space.

[200] It is not sufficient to find that J.P’s touching was probably a sexual assault. The onus on the Crown is to prove beyond a reasonable doubt that it was. I find that the Crown has not done so. There must be therefore be a finding of not guilty in relation to count three.

(iii) Count Four re Complainant L.B.

[201] The Crown relies upon two incidents in relation to the complainant L.B. as constituting sexual assaults for the purposes of count four of the indictment, both of which L.B. testified occurred on the same shift. The first involved J.P. pressing his genitalia area against her and the second involved J.P. grabbing her bottom.

[202] As with the other complainants, J.P. denied that the incidents relied upon by the Crown took place. Moreover he maintained that his interaction with L.B. was limited as he only worked with her on one part-time shift.

[203] As with the evidence of L.H., based upon a consideration of all of the evidence, including J.P.’s outright denial that the incidents relied upon by the Crown occurred, I am not left in a reasonable doubt that J.P. did grab L.B.’s bottom and pressed his genitalia area against her during a single shift on C[…]. I make this finding based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence. L.B.’s evidence that the incidents occurred was not undermined or successfully challenged on cross examination. The similar fact evidence of three other complainants that J.P. had a propensity to and did engage in uninvited and spontaneous touching of PSW’s under his supervision contributes to the rejection of his denial.

[204] L.B. had no previous relationship with J.P. and there is no basis to suggest that she bore any animus towards him or had any motive to fabricate the allegations.

[205] Although L.B. was initially unclear on how often she worked with J.P. that detail was peripheral to the core of her allegations. L.B. did acknowledge that she shared with L.H. her experience with J.P. before each of them separately reported the incidents, however I find no basis to suggest that there was any improper collusion between them to fabricate or exaggerate their allegations against J.P.

[206] I am not satisfied that the Crown has proven beyond a reasonable doubt that what was characterized as J.P. pressing his genitalia against L.B. constituted a sexual assault. In her statement to the Waterloo Region investigator, she stated that she initially thought that the touching was incidental and that the two of them had accidentally brushed up against one another. Although L.B. testified that she felt the touching, she did not see it, only observing J.P. standing beside her afterwards. Again, it is not sufficient to show that the touching probably constituted a sexual assault. The Crown’s obligation is to prove that it was beyond a reasonable doubt. Given L.B.’s reaction to this incident of touching as related to the Region investigator, I am not satisfied that the Crown has discharged that onus.

[207] However I find that the Crown has proven beyond a reasonable doubt that J.P.’s action in grabbing L.B.’s bottom was committed in circumstances of a sexual nature such that L.B’s sexual integrity was violated. L.B. testified that J.P. blew on her neck at the time that he touched her bottom. J.P.’s previous conduct in running his fingers through L.B.’s hair, and commenting on her lips and eyes provide context for characterizing this touching incident as sexual in nature. L.B.’s response in warning J.P. that if it happened again she would report him supports the fact that her sexual integrity was violated.

[208] I find that the Crown has proven beyond a reasonable doubt that J.P. committed sexual assault against L.B. by grabbing her bottom. There will therefore be a finding of guilt on count four.

(iv) Count Two re Complainant H.S.

[209] The Crown points to three alleged incidents reported by the complainant H.S. as constituting sexual assaults on the part of J.P. for the purposes of count two in the indictment, as follows:

(a) pulling H.S.’ scrub top to the side over her shoulder to observe her tan line;

(b) pulling up H.S.’ scrub top from behind and commenting that he was trying to see whether her pants were see-through;

(c) kissing her on the top of her head after she gave him cookies and coffee.

[210] J.P. acknowledged in his testimony that he kissed H.S. on the top of her head as she leaned over to dispose of a cookie wrapper. However he denied the other two incidents of touching upon which the Crown relies for the purposes of count two.

[211] As with the evidence of L.H. and L.B., based upon a consideration of all of the evidence, including J.P.’s outright denial that he pulled H.S.’ scrub top over her shoulder on one occasion and pulled her top up from behind on another, I am not left in a reasonable doubt that these incidents occurred. This finding is similarly based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence. H.S.’ evidence that the incidents occurred was not undermined or successfully challenged on cross examination. The similar fact evidence from three other complainants that J.P. had a propensity for uninvited and spontaneous touching of co-workers contributes to the rejection of his denial.

[212] The lack of a motive to fabricate is particularly highlighted in the case of H.S. Each of H.S. and J.P. characterized the other as a friend in the workplace. They had nicknames for one another and frequently engaged in friendly sharing of personal information and experiences. There was nothing in the evidence to suggest the existence of a reason for H.S. to fabricate allegations of sexual assault against J.P.

[213] Moreover, I find that J.P. did agree, in answer to questions from Brent Richardson, that he likely did pull down on H.S.’ top to see her tan lines if she claimed he did. I find that Mr. Richardson’s recording of J.P.’s responses was reliable. His summary was completed shortly after his interview of J.P. and was based on notes he took during the interview, which Mr. Richardson described as being accurate quotes from J.P. J.P. acknowledged on cross-examination having made many of the statements reported by Mr. Richardson except some that were damaging. One of the statements he acknowledged making was “that looking back I would like to change a number of things”, however his explanation that what he meant was that he would not have been as close a friend with H.S., would not have kissed her on the head and would not have let her hug him was forced and out of context.

[214] Turning to the question of whether the three incidents constituted sexual assaults, I find that the Crown has not discharged its onus of proving beyond a reasonable doubt that the pulling on the scrub top and kissing on the head incidents did constitute sexual assaults. I find that, when viewed in the light of all the circumstances, the sexual or carnal context of these incidents would not be visible to a reasonable observer. Although J.P. pulled down H.S.’ scrub top over her shoulder after or while commenting that “tan lines are sexy,” the action must be viewed in the entire context of two workplace friends engaging in a friendly and light-hearted conversation about southern vacations and tans. Although J.P.’s actions constituted an invasion of H.S.’ personal space and was inappropriate in a workplace, I am left with reasonable doubt that it rose to the level of criminal sexual assault.

[215] The same can be said for the incident in which J.P. kissed H.S. on the head. The evidence indicated that it was done in during a light-hearted conversation, without the sexual or carnal aspects required to support a finding of sexual assault.

[216] However I do find that the Crown has proven that J.P.’s actions in pulling up H.S.’ scrub top to see if her pants were sheer did constitute a sexual assault. In my view, when viewed in all of the circumstances, the sexual or carnal context of the touching would be visible to a reasonable observer. The part of H.S.’ body that was touched and the words and gestures accompanying J.P.’s actions are relevant factors. These include J.P.’s sexualized comments to H.S. during the same month, and his laughing the incident off when she confronted him. H.S.’ response by escaping to a private room and crying supports the fact that her sexual integrity was violated.

[217] There must therefore be a finding of guilt in relation to count two.

(v) Count One re Complainant T.B.

[218] The Crown points to six alleged incidents reported by the complainant T.B. as constituting sexual assaults on the part of J.P. for the purposes of count one in the indictment, as follows:

(a) tugging on T.B.’s top to lift it up to look at her stomach;

(b) tugging on T.B.’s shirt to look at her tattoo above her left breast;

(c) pulling up T.B.’s shirt and tugging on her pants to see what kind of underwear she was wearing;

(d) pushing up against T.B. in a resident’s bathroom on more than one occasion and holding her hips;

(e) untying the strap ties on T.B.’s scrub top, tying her hands behind her back and pushing himself against her; and

(f) grabbing T.B.’s breasts and buttocks over her uniform during a power outage.

[219] J.P. denied that the incidents relied upon by the Crown in reference to T.B. took place.

[220] As with the evidence relating to the complainants L.H., L.B. and H.S., I find that, based upon a consideration of all of the evidence, including J.P.’s outright denial, I am not left in a reasonable doubt that the incidents relied upon by the Crown occurred. Similar to the other three complainants, this finding is based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence. T.B.’s evidence that the incidents occurred was not undermined or successfully challenged on cross examination. The similar fact evidence of all four PSW complainants contributes to the rejection of J.P.’s outright denial that the incidents described by T.B. took place There was nothing in the evidence to suggest the existence of a reason for T.B. to fabricate allegations of sexual assault against J.P. They worked together infrequently and did not know each other well.

[221] Although there were discrepancies between T.B.’s statement to police and her evidence at trial regarding the number of times certain of J.P.’s touching behavior took place, this related only to detail and did not undermine the core of her evidence.

[222] In reference to the incident which occurred during a power outage on the floor, although J.P. testified that, to his understanding, S[…] was equipped with an emergency generator and emergency back-up lighting, he acknowledged that he had never experienced a power outage on the floor and was therefore was not in a position to say whether there was a delay between the lights going out during a power outage and the emergency lights coming on.

[223] I am also satisfied that the Crown has proven beyond a reasonable doubt that the six actions of J.P. towards T.B. that it relies upon constituted sexual assaults. T.B. testified that J.P’s inappropriate behavior towards her involving sexualized talk commenced very soon after she first began working with him on the L[…] floor and continued. This provides context for the sexual aspects of the touching incidents. In my view, viewed in the light of all the circumstances, the sexual or carnal context of each of the assaults would have been visible to a reasonable observer. There must therefore be a finding of guilt in relation to count one of the indictment.

Disposition

[224] For the foregoing reasons I find the accused guilty of sexual assault

in reference to counts one, two and four of the indictment and not guilty in reference to counts three and five of the indictment.

D.A. Broad,J.

Released: September 26, 2017

CITATION: R. v. J.P., 2017 ONSC 5578

COURT FILE NO.: CNJ 8686

DATE: 2017/09/26

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.P.

REASONS FOR JUDGMENT

D.A. Broad, J.

Released: September 26, 2017