COURT FILE NO.: CR-20-00000009-00AP DATE: 2021-02-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MEHRDAD ZAFARI

Counsel: D. Guttman, for the Crown N. Gorham, for Mr. Zafari

HEARD: 25 January 2021

S.A.Q. Akhtar J.

On appeal from the acquittal entered on 17 January 2020 by Justice D. Moore of the Ontario Court of Justice

Factual Background and Overview

Background Facts

[1] The Crown appeals the respondent’s acquittal on charges of sexual assault and forcible confinement.

The Complainant’s Evidence

[2] The complainant, who had just turned 18 at the time of the allegations, met the respondent, the owner of a number of Subway restaurant franchises, when attending a brief, two to three-minute interview for a job as a server. The respondent sent the complainant to one of his restaurants, and she began work after four days of training. However, her employment was terminated after only one day.

[3] On 4 July 2018, the complainant went to the respondent’s Subway restaurant located near Gerrard and Coxwell to collect her pay cheque. The respondent invited her to the back of the restaurant so that he could give her the money she was owed. When they entered his office, the respondent locked the door and began to compliment the complainant on her appearance, suggested to her that she did not need to work, and let her know he could take care of her.

[4] Feeling uncomfortable, the complainant decided to leave and held out her hand to shake the respondent’s. The respondent pulled the complainant towards him, holding her tightly before proceeding to touch her buttocks and breasts. The complainant protested and repeatedly told the respondent to stop, at the same time fearing for her safety.

[5] The respondent persisted. He kissed the complainant’s neck, attempted to pull up her shirt, undid her bra, touched her breasts and squeezed her buttocks. Eventually, he let the complainant go and unlocked the door, warning her not to tell anyone about what had just happened.

[6] The respondent offered to drive the complainant to a nearby subway station and she accepted. The complainant claimed she was still in shock and did not know what to do. During the two-minute ride to the subway, the respondent asked the complainant if she liked what he had done and she responded by saying: “No”. After she exited the respondent’s car, she texted a friend detailing what had occurred.

The Respondent’s Evidence

[7] The respondent testified that he was the owner of a number of Subway restaurant franchises. He originally met the complainant when she attended his restaurant for an interview following which he sent her to his Danforth and Coxwell restaurant for training. The respondent received information that the restaurant was unhappy with the complainant and, as a result, dismissed her.

[8] When the complainant turned up to collect her pay, they had to go to the back of the store as the money was kept in a safe situated in his office. The respondent was “90 percent sure” that he left the door unlocked. After receiving the money, the complainant sat down in a chair close to the door and began a conversation, telling the respondent about her discordant relationship with her family. As she got up to go, the complainant moved towards him, apparently to shake his hand. Instead, the complainant kissed him on the cheeks.

[9] The complainant then sat on his lap and the respondent hugged her. However, he told the complainant that what they were doing was “not right” and he “kind of put her back” in the chair.

[10] The complainant did not leave the office. Instead, she remained in the chair and pulled down her shirt revealing the chest area above her breasts. When the respondent asked her why she was doing this, she chuckled and returned to sit on his lap after again kissing him on the cheek.

[11] The respondent hugged, kissed and touched the complainant. He tried to undo her bra, whilst she continued to chuckle. The respondent touched the complainant’s breast under her shirt with his hand, and when he did so, she said “No”. At that point, he stopped. Afterwards, he offered to drive her to the subway station, and she accepted. When she left the car, she held out her hand and he kissed it before she departed.

The Trial Judge’s Reasons

[12] The trial judge found the complainant, for the most part, to be a credible witness, declaring:

Ms. Khan was an impressive witness. She was not contradicted by any prior inconsistent statement and no motive to fabricate was proven or even suggested. Given that Mr. Zafari confirms that he did most of the things that she said he did in terms of the touching and kissing etc., she did not appear to be exaggerating the type of conduct that did occur.

[13] However, there was some dispute over the validity of the complainant’s account that she was standing whilst the respondent touched and kissed her from a seated position. Counsel for the respondent at trial (not Mr. Gorham) argued that given the relative physical positions of the parties this scenario was impossible. In response, Crown counsel (not Mr. Guttman) submitted that as the complainant was only 5’1” tall, this issue should not raise a reasonable doubt.

[14] The trial judge agreed with the defence submission, describing this “discrepancy” as material. He stated:

There is however one very significant and material weakness in her account of events. She testified that Mr. Zafari remained seated throughout the sexual assault and that she remained standing straight up. She denied ever sitting on Mr. Zafari's lap. She denied bending forward towards him.

I find that it would have been impossible for Mr. Zafari to kiss the back of Ms. Khan's neck or lips and try to put his tongue down her throat from these relative positions even given the relative disparity in his height—she being 5'1" and he being 177 centimetres. [Emphasis added]

[15] With respect to the respondent’s evidence, the trial judge felt it to be “implausible” noting:

I was much less impressed with Mr. Zafari's evidence. His account of the events of July 4th does seem implausible as submitted by the Crown. According to Mr. Zafari, [the complainant], a woman he barely knows and had only previously met for a few minutes, suddenly, and without warning, made sexual advances towards him then sat back in the chair while they had some discussions unrelated to sex and then as she was leaving, she again made sexual advances towards him which he reciprocated as he was essentially incapable of controlling his passions - even though these actions were, at the very best, ill-advised given that he is married, over 30 years older, she was a former employee, and they were in his office where they could easily be discovered or at least heard by the employee that was working outside the office and/or by customers.

I do not accept his evidence. I think it by far the most likely that [the complainant’s] version of events is the truth. Were it not for the standing/sitting discrepancy in [the complainant’s] account, I likely would have rejected his evidence in its entirety pursuant to the analysis set out by the Ontario Court of Appeal in JJRD, but because of that discrepancy coupled with Mr. Zafari's testimony, I am left with a reasonable doubt that Mr. Zafari's version of events might be true. [Emphasis added]

[16] The judge found that the Crown had not proven a lack of consent beyond a reasonable doubt based on the respondent’s account. He set out his reasons in the following way:

On Mr. Zafari's account, Ms. Khan is the initiator of the sexual contact between the two of them by kissing him on the cheeks and sitting on his lap on two occasions. She also positively indicated her agreement to on-going sexual activity by smiling and chuckling. This is not a case of non-responsiveness or being frozen but rather positive communication that she was enjoying the contact. Her positive consent and agreement continued up until the point at which Mr. Zafari touched her breast at which point she said "No" and Mr. Zafari stopped sexually touching her. Although it was submitted that this should be analyzed as a case of honest but mistaken belief in consent and that Ms. Khan was saying "No" should be interpreted as a lack of consent to the breast touching that already took place, I find that I have a reasonable doubt that Ms. Khan did not consent to the touching of her breast but rather, I find that her saying "No" was an indication of the withdrawal of her previously given consent to sexual touching and therefore, find that I have a reasonable doubt that the actus reus of the offence is made out. Basically, that saying "no" was not an indication of past intentions but rather that going forward the contact should stop.

[17] Finally, the judge held that, in the alternative, the Crown had failed to rebut the respondent’s defence of honest mistaken belief in consent stating:

In the alternative, I find that in the context of this case, where on Mr. Zafari's version of events the complainant initiated a sexual contact including by lowering her shirt to draw attention to her cleavage, sitting on his lap and chuckling and smiling throughout indicating positively that she was enjoying what was occurring, that reasonable steps were taken by Mr. Zafari by listening to her and observing her behaviour, including continuing to smile and chuckle when Mr. Zafari either undid her bra or attempted to do so and that he honestly believed she was communicating her consent to the breast touching. Or at least, that I have a reasonable doubt that he honestly believed that."

Grounds of Appeal

[18] The Crown appeals on the following grounds:

1. The trial judge misapprehended a material piece of evidence in finding reasonable doubt;
2. The trial judge misapplied the legal principles relating to consent; and
3. The trial judge erred in finding that the defence of honest mistaken belief in consent applied to the facts of this case.

Did the Trial Judge Misapprehend the Evidence?

[19] The appellant argues that the trial judge misapprehended a key part of the complainant’s testimony. The effect of that misapprehension, says the appellant, played a significant part in the judge’s decision.

[20] A misapprehension of evidence must amount to an error about the substance of evidence, a failure to take into account evidence relevant to a material issue, or a failure to give the appropriate effect to an item of evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 46.

[21] Not every misapprehension of evidence constitutes reversible error: the misapprehension must be material and play an essential role in the reasoning of the trial judge, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2-6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 5; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19.

[22] With respect to findings of credibility, great deference is owed to the trial judge. Appellate intervention can only be justified where the finding is shown to be unreasonable or based on a material misapprehension of the evidence: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 80; R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at para. 7.

[23] In this case, the appellant points to the passage, cited previously, where the trial judge indicated that he found the complainant “impressive” and would have rejected the respondent’s evidence “in its entirety” but for the “discrepancy” in the complainant’s standing/sitting account. That discrepancy, according to the trial judge was the complainant’s evidence that she remained standing throughout the touching and kissing and that “it would have been impossible” for the respondent to kiss the back of the complainant’s neck or lips and try to put his tongue down her throat from their positions due to the disparity in height.

[24] The difficulty with the judge’s analysis is that the complainant never testified that the respondent kissed the back of her neck.

[25] The applicant argues that this was a material misapprehension that tainted the trial judge’s credibility analysis. The respondent, on the other hand, submits that kissing the back of the complainant’s neck was only one item, which when removed from the reasons, leaves the act of kissing and the respondent putting his tongue down the complainant’s throat as relevant factors in the analysis.

[26] I disagree with the respondent’s able submissions. As I have noted, the judge made it clear that these factors were critical in his credibility analysis and prevented his rejection of the respondent’s testimony which was later used, as part of the analysis contained in R. v. W. (D.), [1991] 1 SCR 742, to find reasonable doubt.

[27] I agree with the appellant that it is impossible to know what the judge might have done had he not misapprehended evidence that he used with other items to doubt the complainant’s account: the misapprehension was clearly material.

[28] I would, on this ground alone, allow the appeal.

Did the Trial Judge Misapply the Law on Consent?

[29] The appellant’s second ground of appeal rests on the argument that the trial failed to properly apply the law of consent when finding that he had reasonable doubt.

[30] In R. v. Barton, 2019 SCC 33, the Supreme Court of Canada reviewed the issue of consent in the sexual assault context. Justice Moldaver, writing for the majority, at paras. 87-89 wrote:

A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched" (R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 42).

"Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57).

Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).

[31] Later on, in its reasons, the Court added, at para. 99:

"Broad advance consent" refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A., at paras. 44-48). As summarized in J.A., the definition of "consent" under s. 273.1(1) "suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind" and "this Court has also interpreted this provision as requiring the complainant to consent to the activity 'at the time it occur[s]'" (para. 34, citing Ewanchuk, at para. 26). Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. [Emphasis added]

[32] Here, the trial judge found that the complainant’s "No" was an indication of the withdrawal of “her previously given consent to sexual touching”. The judge concluded that saying “No” was not an indication “of past intentions but rather that going forward the contact should stop”. In other words, the judge held that after initially giving consent, the complainant had revoked it.

[33] The difficulty with this reasoning is that, even on the respondent’s evidence, there is no indication that the complainant communicated consent to touching her breast.

[34] The respondent testified that he took the complainant being “happy” as consent. The judge also referred to the respondent’s evidence on consent in his testimony that the complainant initiated sexual contact “and indicated her consent to his touching and kissing her by laughing and smiling up until the point where he touched her breast underneath her clothes whereupon she said “No” and he ceased touching her”. According to the judge, this evidence might afford the respondent a defence depending on how the judge applied the law.

[35] I find this to be an error. In order to communicate consent, the complainant had to do more than just look “happy” or be “laughing or smiling” up until the touching of her breast.

[36] The following exchange sums up the interaction as testified to by the respondent:

MR. FRIEDMAN: Q. I'm not saying that you held her down by force. I'm saying is — and sexually touched her. I'm saying that you never obtained her consent to sexually touch her.

A. I don't know what consent mean. If someone shows she like it, she want it, to me is a consent. If someone say, don't say no to you, it's a consent. When someone feeling you that she's happy, she's consent. I am sorry to — I, I don't know if I can use it. When I—you go to give your wife to bed, did you ask anything? I, I, I — if she's not — [indiscernible]. But I just exaggerate to explain that. Consent is — this is not buying-selling. It's just — even by one touch, one move, you, you consent.

Q. And I'm also suggesting to you that she actually kept on saying she didn't want this, and you disregarded it and kept on touching her anyways. What's your response to that?

A. As soon as she said, "No," I didn't do anything. As soon as....

Q. But before she said, "No," were you kind of testing the waters, testing things out to see if she'd be okay with it?

A. She, she didn't say no. She didn't say anything. She was happy. I can't explain that by words.

Q. Yes.

A. It's, it's — she's sitting in that room about 20 minutes, whatever, around that without one attempt to go out. But I, I don't know how explain this thing. I, I don't know the, the wording. But I know what I know she was happy there. She wants that. And when I touch the, the last time she said,"No, " I, I stop.

[37] This interaction could not constitute evidence of communicated consent. Even if it could be interpreted as the complainant consenting to being kissed and touched, the complainant, at no point, communicated her consent to the respondent to touch her breast. On the respondent’s own evidence, he touched her breast because prior to doing so “she didn’t say “No””. This is the kind of implied consent reasoning prohibited by the Court in Ewanchuk and Barton.

[38] Tellingly, during the course of closing submissions, the respondent’s trial counsel conceded that even by the respondent’s account, the complainant had not provided consent to the breast touch. Instead, counsel told the court that the respondent was relying upon the defence of honest but mistaken belief in consent. Notwithstanding this concession, the judge indicated that, in his view, consent had been given but revoked when the complainant said “No”.

[39] The trial judge appeared to take the view that the respondent’s evidence - which he neither accepted nor rejected - that the complainant had positively indicated her agreement by smiling and chuckling could constitute evidence giving rise to a reasonable doubt in relation to consent to the further sexual touching of the complainant’s breast.

[40] The judge’s view that “this was not a case of non-responsiveness or being frozen as was the case in Ewanchuk but rather positive communication that she was enjoying the contact” fell into the legally impermissible line of thinking identified by the Court in Barton which cautioned against the concept of broad advance consent reasoning.

[41] For these reasons, I find that the trial judge fell into error in finding reasonable doubt based on consent.

Was There an Air of Reality to Honest Mistaken Belief?

[42] In the alternative, the trial judge found that the respondent honestly but mistakenly believed that the complainant had communicated her consent to the breast touching.

[43] Honest but mistaken belief in consent is qualified by s. 273.2 of the Criminal Code:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[44] In Barton, at para. 104, Moldaver J. held that when raising the defence of honest but mistaken belief there must be evidence that the accused took objectively reasonable steps to determine consent.

[45] It is also clear that an assessment of reasonable steps is fact specific and contextual: Barton, at para. 106. The reasonableness of the steps must be assessed in the circumstances known to the accused: R. v. Cornejo (2003), 68 O.R. (3d) 117, at para. 22; Barton, at para. 104.

[46] Here, the trial judge found that on the respondent’s version of events he took reasonable steps by “listening to and observing [the complainant’s] behaviour which included her continuing to smile and chuckle when Mr. Zafari either undid her bra or attempted to do so and that he honestly believed she was communicating her consent to the breast touching”.

[47] For the following reasons, I find that the trial judge erred and that there was no air of reality to the defence of honest mistaken belief.

[48] First, there had to be a factual foundation to establish an air of reality to the defence. Here, the trial judge did not make any findings of fact with respect to the respondent’s evidence. To the contrary, he explicitly stated that he did not accept the respondent’s evidence and proceeded to the second limb of W.(D.) using evidence that he neither accepted nor rejected to find reasonable doubt as permitted by law. However, the lack of factual findings was fatal to any air of reality.

[49] Secondly, the law is clear that where the testimonial accounts of the complainant and the accused are diametrically opposed on the issue of consent, the general rule is that there can be no air of reality to the defence of honest but mistaken belief. This was explained in R. v. Park, [1995] 2 S.C.R. 836, at para. 26:

To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent. [Emphasis added]

[50] It is only when it is realistically possible to “splice” the complainant’s and the accused’s evidence with respect to the events to produce “a reasonably coherent set of facts, supported by the evidence” that an air of reality might be found to exist: Parks, at para. 25. Otherwise, the determination is simply a question of credibility on the issue of consent.

[51] This rule has been applied in cases such as: R. v. Davis, [1999] 3 S.C.R. 759, at para. 85; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 40; R. v. Crespo, 2016 ONCA 454, 337 C.C.C. (3d) 439, at paras. 21-22; R. v. P.S., 2007 ONCA 299, 221 C.C.C. (3d) 45, at para. 44.

[52] Here, there was no air of reality to the defence: the two accounts were completely contradictory to each other. The complainant made it clear that she vigorously and repeatedly resisted the respondent’s actions from the outset. In direct contrast, the respondent testified that it was the complainant who initiated the sexual activity smiling and chuckling as she did so. There could be no “splicing” of the evidence to allow for the honest mistaken belief on the respondent’s part.

[53] Finally, as described, honest but mistaken belief required the respondent to take reasonable steps to ascertain consent. The trial judge found, on the respondent’s evidence, that his observations of the complainant’s smiling and chuckling when the respondent attempted to undo her bra or did so constituted reasonable steps. This is clearly not the law.

[54] In Barton, at paras. 107-108, Moldaver J. described what could not constitute reasonable steps:

That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537).

It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. [Emphasis added]

[55] Even if the judge had accepted the respondent’s evidence to be a fact (which he did not), mere reliance on the complainant’s chuckling and smiling could not constitute reasonable steps. Here, in cross-examination, when it was put to the respondent that, when touching the complainant’s breast, he was “testing the water”, the respondent replied “she didn’t say no. She didn’t say anything. She was happy. I can’t explain that by words”. This falls far short of the reasonable steps requirement.

[56] In this case, as per Moldaver J.’s comments in Barton, there was a heightened need for care on the respondent’s part. He had only met the complainant on one previous occasion and very briefly. He was in a position of authority - a former employer who was providing a pay cheque in the confines of a workspace. Any reasonable steps required more than simply “listening” and “observing” the complainant “continuing to smile and chuckle”.

[57] For the foregoing reasons, the appeal is allowed and a new trial is ordered.

[58] The respondent is ordered to appear at the College Park courthouse in Toronto at 10 am on 18 March 2021.

S.A.Q. Akhtar J. Released: 19 February 2021