Court File and Parties

COURT FILE NO.: 136/18 DATE: 2020/07/13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NAFI SELMANOVSKI Defendant

COUNSEL: K. Thomas, for the Crown C. Demelo, for the Defendant

HEARD: February 18 and 19, 2020.

MITCHELL, J. (released orally via teleconference):

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Introduction

[1] The defendant stands charged that sometime between August 1, 2007 and June 30, 2009 [1] he committed various offences of a sexual nature against the complainant, B.C. At the time of the alleged offences, the complainant was under the age of 16 years. At the time of trial, he was 27 years of age.

[2] At the time of these allegations the accused owned and operated a restaurant in Strathroy, Ontario. The complainant was his employee.

[3] Two witnesses testified at trial – the complainant and Kyle Clark, another former employee of the accused. Mr. Selmanovski did not testify and elected to call no evidence in defence of these charges.

Legal Framework and General Principles

The Essential Elements of the Offences

[4] Mr. Selmanovski is charged with the offence of sexual interference contrary to s. 151 of the Criminal Code. The Crown must prove beyond a reasonable doubt that Mr. Selmanovski touched B.C. for a sexual purpose at a time when he was under the age of 16.

[5] Mr. Selmanovski is further charged with the offence of sexual assault contrary to s. 271 of the Criminal Code. The Crown must prove beyond a reasonable doubt that Mr. Selmanovski intentionally applied force to B.C., without his consent, in circumstances of a sexual nature.

[6] Last, Mr. Selmanovski is charged with the offence of sexual interference by a person in a position of trust or authority contrary to s. 153(1) of the Criminal Code.

[7] Once it is established that the complainant was under the age of 16 at the time the offences are alleged to have occurred, consent is no longer an essential element to be proven. This is because children are not capable of consenting to sexual activity.

[8] The essential elements of sexual assault and sexual interference overlap. That is, if the offence of sexual interference is made out with respect to the complainant, the offence of sexual assault will also have been proven.

[9] Mr. Selmanovski is presumed innocent. He was not obligated to introduce evidence of any kind and he elected not to do so. The Crown bears the burden of proving Mr. Selmanovski’s guilt beyond a reasonable doubt and this burden of proof applies to every element of each charge. While I need not be absolutely certain the defendant is guilty, more than probable guilt is required. I must be sure of his guilt.

The Evidence

(a) Agreed Facts

[10] The parties have agreed as to the jurisdiction of the Court, the identity of Mr. Selmanovski as the person named in the indictment and the age of the complainant at the time of the alleged offences.

(b) The Complainant

[11] In August 2007 the accused owned and operated a diner in the Town of Strathroy, Ontario. The complainant, then 15 years old, says he met the accused when he was interviewed for a job at the diner in the Summer of 2007.

[12] The complainant testified he was hired in the summer of 2007 and worked part time evenings and weekends as a line cook.

[13] In September 2007, the complainant returned to high school entering grade 11. During his second semester starting January 2008, the complainant did a co-op placement at the diner to earn credits toward his high school diploma. His work on placement involved working mornings from 7 AM to 2 PM unpaid. Although the complainant continued to be paid for his evening shifts.

[14] The complainant described the restaurant as being fairly large (he estimated the restaurant to be approximately one third the size of the courtroom with three tables on the left side, five tables on the right side and two tables in the centre). The accused managed the restaurant and his office was located in the rear of the restaurant.

[15] The complainant was one of nine employees. One of his fellow employees was Kyle Clark. Kyle attended high school with the complainant, however; was a year or two older.

[16] B.C. testified that the manner in which the accused interacted with employees was inappropriate and sexually suggestive. He gave examples of the accused’s behaviour in support of this opinion as follows. He said:

(a) the accused often discussed drugs and alcohol with his employees; (b) the accused would offer Kyle and the complainant boot polish which the accused referred to as “rush”; (c) the accused told the complainant boot polish would make him “horny”; (d) the accused often discussed his relationship with a male police officer and would describe in detail the sexual interactions he had with other men; (e) the accused made sexually suggestive comments to his employees, including the complainant; (f) the accused often touched the employees, including the complainant; (g) the accused had a bed in his office with a surveillance camera; (h) the accused would regularly refer to the complainant as “boy”; (i) the accused described getting drugs from his friends on the police force; (j) the accused brought a quarter pound of marijuana to the diner and divided it between the complainant and Kyle as payment in lieu of wages; (k) the accused offered the complainant an ecstasy pill on one occasion; (l) at a staff Christmas party, the accused served the complainant alcohol to the point he was unable to walk; (m) the accused also touched Kyle inappropriately; (n) the accused regularly kissed the complainant on his face, close to his lips; and (o) the accused would often give him a drive home after his shift and touch him on his inner thigh.

[17] B.C. described how he was being bullied at school about the manner in which he was treated by the accused at work suggesting that he “wanted it”. He recalls the accused telling him he had cancer which the complainant believed was untrue.

[18] B.C. says that the unlawful touching forming the basis of these charges occurred frequently throughout the 8 to 9 months he worked at the diner. He estimates the number of incidents to be 25 times or more. He described that the touching was always over his clothing.

[19] The complainant testified that he wanted to leave his employment and co-op with the diner because of the accused’s inappropriate behaviour. The complainant says he was permitted to withdraw from the co-op and was granted his credits.

[20] The complainant ended his employment with the diner sometime the end of April or beginning of May, 2008.

[21] B.C. says he discussed all of the incidents of sexual touching with Kyle. He says that he did not report the alleged abuse to police at the time because he felt the accused was their friend.

[22] After leaving the diner in 2008, the complainant testified that he had contact with the accused one further time. He testified that while he was attending college in London, the complainant contacted the accused who was working at a restaurant in London. The complainant met with the accused to discuss possible employment at the restaurant.

(c) Kyle Clark

[23] Kyle testified that he worked part time at the diner when he was 16 or 17 years of age as a line cook in 2007/08. After the diner closed in 2008, Kyle has not had any contact with the complainant.

[24] Kyle worked at the diner every day after school and usually did not work on weekends.

[25] Kyle described the atmosphere at the diner as “fun and outgoing”. He recalls there being a lot of joking among the employees who were all young.

[26] Kyle recalls inappropriate touching and discussions with the accused. He gave as examples the accused massaging the employees’ shoulders, placing his hand around hips, unnecessary touching and “hanging off” their shoulders. This type of touching and conversation occurred regularly and openly occurred with all the employees.

[27] Kyle recalls the accused inviting him into his office and offering him “poppers” or boot polish. Kyle testified that he was always alone with the accused when he was offered “poppers” and said the complainant was not present.

[28] The accused often drove Kyle home from work at the end of his shift. Now and again, Kyle recalls the accused driving the complainant home; however, Kyle said the complainant was always dropped off to his home first.

[29] Kyle recalled an incident on one of these drives home when the accused gave him an ounce of marijuana as a gift. Kyle did not observe the police providing drugs to the accused.

[30] Kyle says B.C. discussed with him at the staff Christmas party an incident where the accused had grabbed him by “his balls”. He remembers they laughed it off as they were both drunk and while they discussed the incident many more times after the party, they did not discuss any further incidents of sexual touching.

[31] Kyle recalls the restaurant being approximately 800 ft.² with seven tables in total. He said that when the restaurant was busy, the aisles were cramped.

(d) Analysis

[32] The Crown submits that all the essential elements of the three offences have been established beyond a reasonable doubt. With respect to the third count the Crown says as an employer and owner of the diner the accused held a position of trust vis a vis the complainant and therefore was a person of authority. The Crown submits that the totality of the accused’s behaviour including calling the complainant “boy”, driving him home, offering to have him live with him and his family, were all part of his efforts to “groom” the complainant to facilitate the sexual abuse.

[33] The incidents underlying these charges consist of approximately 25 instances of the accused grabbing the complainant’s genitals and buttocks with an open hand over his clothes and kissing his face. These instances include but are not limited to an incident where the accused massaged the complainant on the mattress in his office and incidents where the sexual touching occurred while he was washing potatoes and separating fish at the sink located in the office.

[34] The complainant testified that he did not consent and nor did the accused ask for his consent. On the evidence, a lack of consent is presumed should sexual touching be proven beyond a reasonable doubt.

[35] The Crown submits that many key aspects of the complainant’s evidence were consistent with Kyle’s evidence including:

(i) being touched on the thigh by the accused while being driven home; (ii) the accused giving back massages to Kyle and the other employees; (iii) both being offered boot polish by the accused to get aroused; (iv) the contents and layout of the accused’s office; (v) inappropriate, albeit not sexual, touching by the accused and inappropriate discussions with employees; (vi) the accused telling both Kyle and the complainant of his sexual relations with police officers; and (vii) details of the Christmas staff party.

[36] The Crown further submits that any inconsistencies, whether internal or external, in the complainant’s evidence relate to peripheral matters. The Crown says that the complainant was unshaken in his evidence on the sexual touching with respect to where, when and how it occurred.

[37] The accused defends these charges on the basis the incidents of alleged unlawful sexual touching did not occur. The accused points to numerous material inconsistencies in the complainant’s evidence – both internal and external – which undermine both the credibility and the reliability of his evidence.

[38] In historical cases such as this one, a complainant’s evidence may suffer from a lack of reliability regardless of the sincerity and truthfulness of their evidence. The complainant was an adult when he testified to the events forming the basis of the charges against Mr. Selmanovski. However, these events are alleged to have occurred when the complainant was 15 years of age – approximately 12 years prior. It is trite to say that inherent frailties exist with respect to historical evidence.

[39] With respect to the credibility of evidence given by children or by adults with respect to events which occurred when these adults were children, I am guided by the words of McLachlin J. in R. v. W.(R.) [2] at para 26 where she states:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to [him] mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events, which occurred when [he] was a child, [his] credibility should be assessed according to criteria applicable to [him] as an adult witness. Yet regarding [his] evidence pertaining to events, which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which [he] is testifying.

[40] The complainant could not accurately remember the time period he worked at the diner (whether it was 2007/08 or 2008/09). However, the complainant has consistently stated he was 15 years of age when he started working at the diner and was entering Grade 11. Based on this evidence and having regard to the complainant’s date of birth being December 22, 1992, I find that the complainant was 15 years old in July 2008 and therefore, worked at the diner from July 2008 through May 2009.

[41] A number of internal inconsistencies in the complainant’s evidence were revealed at trial. I will describe those now.

(a) In his statement to police the complainant stated he ran into police Officer Phillion on the street. However, at trial the complainant said he could not identify Officer Phillion and denied running into him. (b) At trial, the complainant said he observed the accused bringing drugs into the restaurant. However, in his statement to police he did not report seeing drugs being brought into the diner. (c) At trial, the complainant testified that he did not bring marijuana into work and was not disciplined by the accused. However, the complainant testified at the preliminary hearing that he got into “big trouble” for bringing marijuana to the diner and smoking it with Kyle. (d) The complainant did not report the massage incident to police nor any details surrounding the alleged assault. The complainant did not report to police that the accused kissed him. At trial the complainant testified during examination in chief that the accused regularly kissed him on the face. However, during cross-examination, the complainant testified that kissing happened approximately 5 times. (e) B.C. first reported to police that sexual touching occurred approximately 15 times. However, at trial he reported the number of incidents to be in excess of 25. (f) At the preliminary hearing B.C. testified that the accused touched him between his legs when he drove him home after his shift. At trial, the accused said he “misspoke” and that all sexual touching occurred in the diner. (g) At trial B.C. said Kyle was not in the office when the accused invited him to watch pornography. When challenged with his statement to police that Kyle was in the room, the complainant again said he “misspoke”. (h) During examination in chief, the complainant testified that he was not required to complete his co-op term at the diner to obtain his high school credits. During cross-examination, he said he “misspoke” and acknowledged he was required to complete his co-op hours at the diner in order to receive the credits. (i) At trial the complainant testified that since the diner closed, he had contact only once with the accused when he met with him and spoke with him about a possible job opportunity at a London restaurant. During cross-examination, the complainant said he “misspoke” when he said he met him once when he and his cousin were at a London restaurant and they saw, but did not speak to, the accused. (j) Kyle testified the accused drove him home every night after his shift and sometimes the complainant would also be driven home but would be dropped home first. The complainant testified that he was always alone in the car with the accused when he spoke inappropriately.

[42] Kyle’s evidence revealed a number of external inconsistencies in the complainant’s evidence. I will describe those now.

(a) Unlike the complainant, Kyle denied that the marijuana given to him by the accused was payment in lieu of wages. (b) At trial, the complainant said he discussed the accused’s inappropriate touching with Kyle “all the time”. Kyle said the complainant discussed only a single incident of inappropriate touching. (c) The complainant described boot polish as “rush”. Kyle described boot polish as “poppers”. The complainant had no recollection of the term “poppers” being used by the accused. (d) The complainant says he witnessed the accused massaging Kyle. Kyle testified he was alone when the accused massaged him. Kyle also testified he did not observe the accused massage the complainant in his office. (e) The complainant testified that Kyle was in the office on some of the occasions when he was offered boot polish by the accused. Kyle testified that he was never in the presence of anyone whenever he was offered boot polish. (f) The complainant testified that the inappropriate touching happened openly in front of other employees, namely, Marg Ross and Kyle. However, Kyle testified that he did not observe the accused touching the complainant inappropriately. Marg Ross was not called as a witness at trial. (g) Kyle testified that he did not perceive the accused’s touching as sexual rather the accused was just trying to teach the employees “his ways”.

[43] The complainant admitted he did not review his police statements before testifying at trial. However, he was committed to his evidence at trial over his earlier (and presumptively more reliable) conflicting testimony from the preliminary hearing and/or statements to police. When challenged on these inconsistencies during cross-examination, the complainant’s explained he “misspoke” on the earlier occasions, or he would describe himself as a “bad” complainant.

[44] In assessing the complainant’s evidence, I must also consider whether he had a motive to fabricate. As was noted in R. v. Bartholomew [3], an absence of a proven motive to fabricate does not enhance the complainant’s credibility rather it is merely a neutral factor. At para. 21, the Court wrote:

An ulterior motive, or a motive to fabricate, on the part of a complainant may be equally important. From the defence perspective, proof of such a motive provides a compelling alternative to the truth of the allegations…

[45] Here, at the time the complainant reported these allegations to police in February 2017, the complainant was facing criminal charges for allegedly uttering threats and assaulting police. In addition, the complainant was convicted for impaired driving in 2014 and has a conviction for resisting arrest in 2013. These charges relate to offences directly involving the police and persons in authority. The evidence of the complainant at trial focussed to a significant degree on the inappropriateness of the accused’s relationships and inappropriate dealings with police officers. In addition, the complainant’s reasons for the delay in reporting the abuse and not reporting the alleged abuse once the diner closed and his co-op was completed, also adds to my concern with respect to his motives. The complainant says he did not report the alleged abuse because he feared the accused had the police in his “back pocket”.

[46] However, I note that any relationship between the accused and the local police force was not directly observed by the complainant. Furthermore, there is no evidence which independently verifies the information provided by the accused suggesting the information provided to the complainant was anything other than fiction or fantasy. The alleged sexual touching was said to have been flagrant and witnessed by other employees and surveillance cameras located within the diner would have captured the abuse. However, the complainant did not come forward until 2017 when he was facing charges involving the police.

[47] Consequently, I find that there is evidence of motive to fabricate on the part of the complainant which serves to further undermine his credibility.

[48] I do not accept the Crown’s submission that the inconsistencies in the complainant’s evidence are with respect only to peripheral or trifling matters. I find that both the external and internal inconsistencies in B.C.’s evidence relate to the very conduct forming the subject matter of these charges. Specifically, the number of incidents of unlawful sexual touching increased from 15 to 25 from the time of the complainant’s first statement to police, to the time he testified at trial; the complainant says he was groped in front of Kyle, yet Kyle denies this; the complainant says he was inappropriately touched during a massage in the presence of Kyle, yet Kyle denies this; the complainant says he and Kyle were both offered boot polish together, yet Kyle says he was alone; the complainant says he discussed the many instances of inappropriate touching with Kyle, however; Kyle remembers only discussing one instance of sexual touching.

[49] The extent of the changes in both the detail relating to the alleged abuse and the complainant’s evidence, generally, from his first statement to police to his testimony at trial are numerous. In their totality, these inconsistencies are deeply concerning. As was noted in R. v. Ghomeshi [4] at paras. 64 and 65:

[64] An inability to recall the sequence of such a traumatic event from over a decade age is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each a differing version of the events was put forward by this witness as a sincere and accurate recollection.

[65] When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.

[50] The extent and materiality of the inconsistencies in the complainant’s evidence seriously undermine the complainant’s credibility and reliability and raise a reasonable doubt as to whether the accused engaged in any sexual touching with B.C. as alleged.

[51] I find it would be dangerous to entertain a conviction of the accused on the evidence presented at trial. The concerns I have outlined with respect to the reliability and the credibility of the complainant’s evidence leaves me with a reasonable doubt as to the defendant’s guilt. Simply put, the Crown has failed to discharge its heavy burden.

Conclusion

[52] For the reasons I have just outlined, I will enter a verdict of not guilty on each of the 3 counts on the indictment.

[53] Nafi Selmanovski is hereby discharged.

“Justice A.K. Mitchell” Justice A.K. Mitchell

Released: July 13, 2020

COURT FILE NO.: 136/18 DATE: 2020/07/13 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NAFI SELMANOVSKI REASONS FOR JUDGMENT Justice A.K. Mitchell Released: July 13, 2020

[1] At the commencement of trial, the indictment was amended to reflect the date range for each count as August 1, 2007 through June 30, 2009.