ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-10000827-0000

DATE: 20210714

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ENZO DE JESUS-CARRASCO

R. Nathanson and P. Santora,

for the Crown

H. Aly, for Mr. De Jesus-Carrasco

HEARD: 7 June – 11 June 2021

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

s.a.Q. akhtar j.

I. FACTUAL BACKGROUND AND OVERVIEW

Background Facts

1Enzo De Jesus-Carrasco (“Mr. De Jesus”) stands charged with the sexual assault of two complainants, hereinafter referred to as “JM” and “EB”. Both women worked alongside Mr. De Jesus at the College Street Bar (“the Bar”) in downtown Toronto. Both allege that, at different times, Mr. De Jesus waited until they were alone, and forced himself on them putting his hand down their pants and digitally penetrating them.

2The Crown brings a similar fact application relying on the evidence of two unrelated complainants as well as a “count to count” application asking this court to apply the evidence of JM and EB in relation to both sexual assaults.

3By way of background, Mr. De Jesus and Mr. MacMillan were subsequently convicted of drugging and sexually assaulting another female at the bar whilst she was unconscious (the unconscious assault allegations). This offence is referenced later on in this decision as the unconscious assault conviction.

The Sexual Assault Allegations Made by JM

4JM is now 29 years old. In 2014 she was working at a bartending school called Bartender One as well as working as a bartender in the College Street Bar. Both establishments were owned by Gavin McMillan. The Bar was both a cocktail bar and restaurant. In addition, JM attended private events such as house parties.

5JM was originally hired by Mr. MacMillan to work as an instructor at Bartender One teaching students how to work as bartenders. She had been working there for about a year when she met Mr. De Jesus who attended as a student. Later, the two would be employed as servers at the College Street Bar.

6Although the Bar had a rule that staff were prohibited from drinking during work, many of staff, including Mr. De Jesus and Mr. MacMillan, would consume alcohol on a regular basis during the hours of operation.

7On 8 December 2015, JM began work at the bar around 4:00 p.m. When she arrived she realised Mr. De Jesus had been drinking and observed him continuing to do so throughout the day. JM completed her shift at approximately 9:30 p.m. and offered to drive other employees who lived on her route to their home. Mr. De Jesus along with another couple accepted.

8After the couple alighted the car, Mr. De Jesus, who was seated in the front passenger seat, asked JM if she could drop him off near Broadview Avenue and Gerrard Street. JM testified that en route, Mr. De Jesus acted in a flirtatious manner and was making passes at her. She felt uneasy but brushed off his comments by laughing and thanking him for any compliments.

9JM testified that Mr. De Jesus had asked her out on a prior occasion. However, she had declined because they worked together.

10They arrived at their destination on Gerrard sometime between 9.30 and 10 pm. Mr. De Jesus asked JM to pull over and told her that he wanted a kiss. When she refused, he pulled her closer. In response, JM kissed him on the cheek to placate him. However that was not enough: Mr. De Jesus demanded a “real kiss”. Hoping it would be enough to make him leave the car, JM planted a brief kiss on Mr. De Jesus’ lips.

11Without warning, Mr. De Jesus pushed JM back and put his hand on her leg. He kissed her and told her that everything would be “okay”. JM tried to resist but Mr. De Jesus was in her words, “too strong”. He put his hands down her pants inserting his fingers into her vagina.

12Despite, her repeated protests, Mr. De Jesus continued the assault kissing JM and telling her to “sit back and enjoy”. JM testified Mr. De Jesus had his hands in her pants for approximately 3-5 minutes.

13Mr. De Jesus stopped and sat back in his passenger seat before asking JM to accompany him to his home. She refused and Mr. De Jesus left the car. JM testified that the car had been running throughout these events.

14JM returned to work at the Bar a few days later on 12 December 2015. Mr. De Jesus was also present. She informed Mr. MacMillan about the sexual assault in her car and he asked her what she wanted him to do. Eventually Mr. MacMillan told JM that he would “take care of it” and that she should go home.

15Later Mr. MacMillan told JM that he had spoken to Mr. De Jesus who had told him it had been a “misunderstanding”. Mr. MacMillan separated JM and Mr. De Jesus in their work shifts: Mr. De Jesus would continue to be employed at the bar whilst JM taught at Bartender One.

16Although JM thought Mr. MacMillan would help her, that was not the case. JM came to believe that Mr. De Jesus and Mr. MacMillan had become the best of friends. By losing her work shifts at the Bar, JM suffered financially because of the difference in remuneration.

17JM would return to working at the Bar with Mr. De Jesus who had, by then, assumed a managerial role. She never spoke to him about the incident although he sent her a text message which she perceived to be an apology.

18JM stopped working at the bar in October 2016. She testified that she did not go to the police out of fear for her future employment prospects at other restaurants and the fact that Mr. MacMillan might cast aspersions on her reputation.

19JM changed her mind because she realised that she should have gone to the police earlier. A friend encouraged her to report the incident to the police after sending her a web link to an article about something that had happened with another woman. She did not remember the details of the article other than it referenced a sexual assault.

Mr. De Jesus’ Version of Events

20Mr. De Jesus is now 36 years old. He started working at the bar on 14 August 2015. JM was a bartender and main trainer at the Bartender One school. Mr. De Jesus testified that the Bar opened only from Wednesday to Sunday, contrary to JM’s assertion that it was also open on Tuesdays the day JM alleged the assault had occurred.

21Mr. De Jesus denied the assault. He agreed that there were occasions when JM drove him home and that sometime in October 2015, JM drove him and another employee named Tony home after work. After Tony had left the car, JM continued the drive to Mr. De Jesus’ residence.

22Mr. De Jesus testified that JM had always been flirtatious with him and that on this occasion they openly engaged in sexual discussion. Mr. De Jesus asked JM if she was attracted to him and she said that she was. When Mr. De Jesus asked if he could kiss her neck, JM agreed but added that he should not do so whilst she was driving.

23JM stopped the car three houses from Mr. De Jesus’s residence. He again asked her for a kiss and they began making out. At some point, Mr. De Jesus asked JM if he could “touch her”. She agreed but warned him that she was on her period. Mr. De Jesus assured her that “there is no period in the clit area” and began touching her on top of her pants. She told him to stop whilst she took off her seat belt and opened up her dress pants.

24Mr. De Jesus said that he touched her in a circular motion and that JM had an orgasm. The pair had a discussion about what they aspirations they had in a future relationship. When JM told Mr. De Jesus that she wanted “love, attention, and pleasure”, Mr. De Jesus told her he could only give her “one of those things”.

25Mr. De Jesus invited JM to a nearby bar called the Triple A Bar where they had a drink and left after 20 minutes going their separate ways.

26The next day, Mr. De Jesus returned to the Bar to meet a “date” who had travelled into Toronto from outside the city. He chose the Bar because he could purchase food and drinks on a running tab. Shortly after arriving at the Bar with this woman, he saw JM enter with a female friend.

27JM knocked on his table and walked to the back of the bar. Mr. De Jesus followed and found JM downstairs in the ice storage room sitting with her arms folded across her chest. She was very angry and questioned why Mr. De Jesus would bring another woman to the Bar. He explained that he did not realise JM would also be there.

28After a further discussion, Mr. De Jesus left to return to his table. However, JM and her friend left the Bar without finishing their drinks.

29The next day Mr. MacMillan texted Mr. De Jesus and arranged to meet him at the Bar. Mr. MacMillan told Mr. De Jesus that JM was upset and that he had asked her whether she wanted to “press charges” or fire Mr. De Jesus. However, JM had told Mr. MacMillan that “it wasn’t like that”.

30A couple of weeks later Mr. De Jesus asked JM to accompany him to a restaurant near Bartender One and apologised for offending her and insisted he had meant no harm. JM responded by telling Mr. De Jesus that it was “water under the bridge”.

31Eventually, Mr. De Jesus was appointed to a managerial position at the Bar. He showed JM a business card that Mr. MacMillan had made for him. Mr. De Jesus asked JM to co-manage the bar with him. JM replied that it was for Mr. MacMillan to make that offer and not Mr. De Jesus. JM told Mr. De Jesus that she was leaving the Bar and Bartender One because she had received no recognition and had been passed over for a senior position at Bartender One.

The Sexual Assault Allegations Made by EB

32EB is now 24 years old. In 2016, she started a course at Bartender One and began working at the College Street Bar four times a week. EB would also work at private parties as a server.

33The Bar was her only job and she reported to Mr. De Jesus as the bar manager. Mr. MacMillan was owner of the Bar but not an everyday attendee.

34EB described the workplace environment as toxic and abusive with the staff being encouraged to drink by Mr. MacMillan and Mr. De Jesus who, *constantly yelled at the employees.

35EB did not socialise with the rest of the staff unless she was carpooling or being forced to eat with them.

36Nor did she enjoy interacting with Mr. De Jesus finding him to be aggressive, inappropriate and abusive. On the occasions that he acted in a more cordial manner, she continued to remain fearful of him. EB testified that Mr. De Jesus frequently made sexual comments to her.

37On or around 30 October 2016, on her second shift at the Bar, Mr. De Jesus sexually assaulted her. EB testified that a few days before the assault he told her that wanted her to make her “come”. He would repeat these comments after he had assaulted her.

38On the night of the assault, a friend of hers, Rob, attended the bar and drank a significant amount which resulted in him passing out on the floor after the Bar had closed. EB and Mr. De Jesus had themselves consumed several shots of whiskey during their work shift. EB described herself as “6 out of 10” on an intoxication spectrum.

39Part of EB’s responsibilities meant that she had to clean up after the Bar had closed which normally occurred around 2:30 a.m. As she performed those duties alone in the kitchen Mr. De Jesus entered, approaching her from behind. He said something to her that she could not remember.

40Mr. De Jesus either turned EB around or she turned to talk to him. She could not move because of his proximity and felt pinned. Mr. De Jesus took his right hand and put them down her black jeans digitally penetrating her vagina for approximately 10 seconds. EB testified that she had not consented to any touching. She froze and was traumatised by Mr. De Jesus’s actions.

41Initially, EB testified there was no other touching but was shown her previous statement to the police where she indicated that Mr. De Jesus had initially kissed her and she had kissed him back. EB maintained that she wanted no physical contact with Mr. De Jesus.

42When the assault ended, EB left the kitchen and went to check on Rob with Mr. De Jesus. In the end, they poured cold water on him to wake him up. Afterwards, they went to the nearby Fran’s Diner as suggested by Mr. De Jesus. EB had no desire to go there but felt it to be the right decision because it ensured ensuring Rob could sober up and eat.

43Eventually, EB and Rob left together and she helped him get home. EB did not tell anyone what had happened although she thought about disclosing the assault to Mr. MacMillan. However, she was scared and traumatised, and wanted to keep her job.

44After the assault, she continued to work at the Bar but felt uneasy. At one point, she told Mr. De Jesus that he was not going to assault her again.

45Later on, another woman, VB, began work at the bar and Mr. De Jesus turned his attentions towards her. EB did not remember telling VB what had happened to her.

46EB left the bar in December 2016 because of the work environment and after being verbally abused by Mr. De Jesus. A week later, she received an article which revealed that Mr. De Jesus had been arrested for other sexual assaults.

Mr De Jesus’ Version of Events

47Mr. De Jesus testified to the following version of events.

48By the time EB started working at the Bar, Mr. De Jesus had become the manager.

49On the night of the incident, EB had been at the Bar for about 2-4 weeks. Mr. De Jesus testified that he and EB would be engage in regular flirting with each other. Another employee, also known as Jelly, was also on shift that night.

50Mr. De Jesus confirmed EB’s account that one of her friends, Rob, had turned up at the bar and had passed out after drinking. Mr. De Jesus tried to wake him up by pouring a glass of ice water over him. EB told Mr. De Jesus not to call an ambulance. Eventually, Rob woke up and they left him sitting up on the floor.

51EB led Mr. De Jesus to a secluded space in the Bar and began kissing him. He asked her why she liked him and she told him that she liked his confidence. According to Mr. De Jesus, EB jumped on him and wrapped her legs around him. The two continued to kiss and Mr. De Jesus touched EB’s breasts and buttocks telling her that there was “no rush” and that she should go and tend to her friend.

52After checking in on Jelly who had been disposing of the empty beer bottles and containers, Mr. De Jesus suggested that he and EB take Rob to the nearby Fran’s Diner so that Rob could eat. After they finished their meal, Mr. De Jesus and EB helped put Rob in a cab and Mr. De Jesus gave her money to pay the driver.

53Mr. De Jesus denied putting his hands down EB’s pants or putting his finger into her vagina. He insisted that any sexual activity was consensual.

54Mr. De Jesus testified that EB’s work habits left a lot to be desired. After that night, he found himself having to micromanage EB when she worked at the bar. She would fail to listen to instructions, and had many of her cocktails returned because they were not made to an adequate standard.

55At some stage, Jelly told Mr. De Jesus that she had seen EB stealing from the Bar.

56Some of EB’s friends had come to the Bar and she was serving them. Several rounds of drinks were being given to EB’s friends but not being entered in the register. Mr. De Jesus saw that the group were consuming more drinks than had been paid for. EB was also making cocktails that were inadequate which customers were asking to be returned.

57When he spoke to her about these failings, EB told him that he could not speak to her in that way. Mr. De Jesus informed EB that he had caught her stealing from the bar on camera. When EB’s friends were ready to leave, one of them took out his wallet to pay but EB refused payment.

58EB asked Mr. De Jesus if he wanted her to leave and he pointed to the door. EB went to the back of the Bar and said she was going to call police. She met Mr. MacMillan and they walked out of the Bar together.

59A week later, EB texted him about being paid although Mr. De Jesus testified that he did not deal with hours worked or payment to the staff.

II. THE SIMILAR FACT APPLICATION

60The Crown applies to have evidence from two extrinsic sexual assault allegations apply to the counts on the indictment. It further applies to have each count’s evidence apply against the other (the count to count application).

The Extrinsic Incidents

The Sexual Assault on VB

61By 24 November 2016, VB had been employed as a bartender at bar for about six weeks when Mr. De Jesus, the manager, led her to the basement. He told VB that she was tense and needed to relax before starting to massage her. Mr. De Jesus put his hand on her knee, moving it up her leg. VB told him to stop but, instead, Mr. De Jesus put his hands on her shoulders, picked her up and pushed her against the wall. Mr. De Jesus then put VB’s hands on the wall and pushed her pants down to around her knees. VB again told him to stop but he ignored her and proceeded to touch her vagina and chest. Although the Crown alleged that there had been digital penetration, the trial judge found that only this aspect had not been proven beyond a reasonable doubt. The judge accepted VB’s account in all other respects and convicted Mr. De Jesus of sexual assault on 6 August 2020.

The Sexual Assault on JB

62JB was VB’s friend and arranged to meet her at the College Street Bar. Her interaction with Mr. De Jesus was captured on a security video which shows what appears to be an intoxicated JB embracing Mr. De Jesus who pulls down her pants and thrusts his hands into her crotch area appearing to digitally penetrated JB. The Crown seeks to have this evidence admitted as part of its similar fact application.

63Mr. De Jesus, along with Mr. MacMillan, was convicted of a gang sexual assault on JB by a jury on 2 December 2019, but acquitted of the sexual assault relating to the allegations of digital penetration seen on video.

The Count to Count Application

64The Crown also applies for a ruling that the evidence relating to each complainant be applied against the other using the similar fact application principles.

Legal Principles

65The leading case of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, sets out the governing principles in deciding the admission of similar fact evidence. The onus is on the Crown to establish, on a balance of probabilities, that in the circumstances of any given case, the probative value of the evidence outweighs its prejudicial effect: Handy, at para. 55; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 33; R. v. Cresswell, 2009 ONCA 95, at para 10.

66The court in Handy, at para. 71, made clear that the admissibility of the evidence pivots on showing more than mere general propensity to commit the offence and must be of significance to a live issue in the offences before the court.

67A list of (non-exhaustive) factors to be considered when assessing probative value includes:

1. The live issue that the evidence seeks to relate to;

2. Proximity in time of the similar acts;

3. Similarity of the acts;

4. Number of occurrences;

5. Circumstances surrounding or relating to the similar acts;

6. Distinctive features;

7. Intervening events; and,

8. Any other factor supporting or rebutting the underlying unity of the acts.

68These factors must be evaluated through the lens of prejudice. A court must consider whether the issue to be proven by the evidence can be established by evidence of a lesser prejudicial nature. In addition, the court must be mindful of the risk that the evidence becomes a distraction drawing focus away from the actual offence and consuming a disproportionate amount of time (“reasoning prejudice”).

69In this case, identity is not in issue. In Handy, at para. 78, the court pointed out that in these cases “the drivers of cogency in relation to the desired inferences” will not be the same as a case where the accused had not been directly identified as the perpetrator of the offences. There, the court found that if the issue had been identity the similar fact evidence would not have been admissible because “it was not so ‘peculiar and distinctive’ as to amount to a ‘signature’ or ‘fingerprints at the scene of the crime’”: Handy, at para. 79. By contrast, if the issue had been something other than identity, a dissimilar act would still be admissible if it yielded an inference on the issue to be decided.

70In R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 91, Watt J.A. explained this doctrine in the following way:

The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proffered and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused's conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.

71Prejudice is not measured by its incriminating impact but by its improper use by the trier of fact: R. v. B. (L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481, at para. 22. The real danger of prior discreditable conduct is that an accused is convicted not of the offences with which he is charged but of past bad acts: Handy, at para. 139.

72In R. v. Z.W.C., 2021 ONCA 116, at paras. 102-103, the court identified two forms of prejudice: moral and reasoning. Moral prejudice arises from the prospect that a trier of fact will convict an accused not on the evidence but on the basis of their prior bad acts or for being a “bad person”. Reasoning prejudice derives from the potential that a trier of fact might be diverted from its proper task and give the evidence more weight than it deserves. In judge alone trials the danger of moral prejudice reasoning is significantly diminished: R. v. C.K., 2015 ONCA 747, 342 O.A.C. 87, at para. 41; R. v. B.(T.), 2008 ONCA 177, 95 O.R. (3d) 21 (C.A.), at paras. 26-33; R. v J.W., 2013 ONCA 89, 302 O.A.C. 295, at para. 57; R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 94.

73The court in C.W.Z. set out the following factors as among those to be considered, at para. 104:

1. The seriousness of the discreditable conduct

2. The extent to which it may support an inference of guilt solely on bad character

3. The extent to which it may confuse the trier of fact

4. The ability of the accused to respond

Admissibility

74The common factor in this case is Mr. De Jesus’s act of putting his hand down each victim’s pants and touching their vaginal area without consent.

75The Handy factors set out previously provide a guideline to admissibility. As noted in J.M., at para. 91, what is required is a “persuasive degree of connection” between the similar acts and the offence charged to permit the necessary inferences.

76I am not persuaded that the evidence sought to be admitted in relation to JB and VB is of sufficient probative value in this case. Although there is some proximity in time regarding the JB and VB allegations to that of EB, JM’s allegations occurred one year earlier.

77The JB video presents a significant difficulty. The probative value of the similar fact evidence lies in its ability to support the Crown’s argument that Mr. De Jesus puts his hands down the pants of his victims without their consent. In other words, the Crown relies upon the similarities of the circumstances in JB’s case with that of JM and EB.

78The problem is that Mr. De Jesus was acquitted of the sexual assault allegations in relation to JB arising from this video. Mr. Nathanson, on behalf of the Crown, submits that as the actus reus of the offence was beyond dispute, the basis of the acquittal had to have been reasonable doubt regarding the mens rea component. I disagree.

79The actus reus of the offence would be complete if Mr. De Jesus put his hands down JB’s pants without her consent. However, I cannot be sure, from the video if the jury acquitted because it had a reasonable doubt about consent rather than Mr. De Jesus’ mental state.

80In either case, I find the probative value of the video evidence to be diminished. The jury’s finding of not guilty means the evidence is not capable of raising the inference that the Crown seeks to advance.

81Mr. De Jesus’ acquittal reduces or even extinguishes any similarity between Mr. De Jesus’ actions regarding JB, on the one hand and EB/JM on the other. The only similarity is that Mr. De Jesus placed his hand down JB’s pants and digitally penetrated her. This may have been with her consent or because he thought she was consenting. That is not enough under the Handy principles.

82On the other hand, the assault on VB bears a much closer similarity to the offences before this court. All three women were co-workers and Mr. De Jesus touched them without consent in the crotch area.

83However, there are also significant differences. Unlike EB and JM, Mr. De Jesus lured VB to the basement using his position as her supervisor, and began to massage her before using force to push her against a wall, hold her there and pull down her pants. Most importantly, the trial judge found there was insufficient evidence to conclude beyond a reasonable doubt that Mr. De Jesus had digitally penetrated VB. There is also, the possibility of collusion between EB and VB who discussed Mr. De Jesus’ behaviour at work although that is of lesser concern.

84Weighing these considerations, and recognising that this is a close call, I find that the assault on VB does not carry the sufficient persuasive degree of connection required by the jurisprudence. I therefore find it inadmissible.

85By contrast, the evidence of assault on each of EB and JM is sufficiently probative to warrant its use on the other count.

86EB and JM were both Mr. De Jesus’ co-worker. On each allegation, Mr. De Jesus waited until the complainant was alone before assaulting them. Both complainants testified that he kissed them and, without warning put his hand down their pants digitally penetrating them.

87In my view, this evidence satisfies the Handy guidelines for admission.

88Accordingly, the evidence relating to JM and EB is sufficiently similar to be of persuasive value in deciding whether Mr. De Jesus is guilty of the offences charged. The count to count application is allowed.

III. DID MR. DE JESUS SEXUALLY ASSAULT JM?

89As described, JM and Mr. De Jesus provide diametrically opposed accounts of what happened in the car.

90JM testified that she had no sexual interest in Mr. De Jesus and agreed to kiss him only to get him to leave her car. Mr. De Jesus said that JM was a willing sexual participant interested in nurturing a relationship with him and becoming angry after seeing him with his date the next day.

91For the following reasons, I find Mr. De Jesus’s evidence to be very problematic.

92First, it is hard to understand why Mr. De Jesus cannot remember his home address on Gerrard Street at the time of the incident but at the same time can remember with some precision the events in the car. It is worth noting that Mr. De Jesus had lived at his Gerrard Street home for approximately 14-18 months.

93Secondly, according to Mr. De Jesus, JM was in a more senior position in the Bar - in his words “a power figure” in the company. As Mr. De Jesus confirmed, at the time of the incident, she stood in position of authority over him.

94Against this background, Mr. De Jesus’s testimony becomes incredible. I do not accept that JM, an established employee at the Bar was willing to engage in high risk sexual activity in a car on a busy street in full view of the public. It would make no sense for JM to engage in this activity and risk being seen by the public or worse, law enforcement, particularly when any consensual sex could be safely conducted in the privacy Mr. De Jesus’s residence three houses away.

95However, according to Mr. De Jesus, after he suggested “touching” her, JM never once suggested that they go to his home.

96Thirdly, Mr. De Jesus’ explanation, given in cross-examination, as to why he repeated his request for a kiss in the car after JM had already previously agreed to his request does not stand up to scrutiny. Mr. De Jesus explained that his lack of seniority and concerns for his job meant that he had to “play it safe” otherwise he was “gone from the bar”.

97Yet his safety concerns seemingly evaporated when JM agreed to have sex on a busy street in a car: a scenario which could have far worse consequences for his employment. This is hardly an instance of “playing it safe” Even though playing it safe was Mr. De Jesus’s concern, he never thought to invite JM to his home for sex.

98Nor do I find it credible that JM would agree to any type of sex in the confines of a car when she was having her period. This, in my view, defies logic.

99Finally, I reject Mr. De Jesus’s account of what happened the next day. According to Mr. De Jesus, JM had made it obvious that she wanted a relationship with him when she told him that she wanted “love, attention and pleasure”. If this was the case, there would be very little reason for Mr. De Jesus to invite another woman to the bar and risk a conflict with JM – someone who he had testified was senior employee and an important figure at the bar. I find Mr. De Jesus’ account of JM’s supposed “jealousy” the next night to be a fabrication. \

100In conclusion, I disbelieve Mr. De Jesus’s evidence and it fails to raise a reasonable doubt.

101Turning to JM’s evidence, it is clear that there are differences between her account and that of EB. For example, JM testified that she was sexually assault on a Tuesday and denied suggestions that the Bar was closed that day. However, EB confirmed Mr. De Jesus’s assertion that the Bar was open only from Wednesdays to Sundays.

102Moreover, JM testified she was wearing spandex yoga pants when assaulted whereas Mr. De Jesus described her as attire as dress pants. EB told the court that yoga pants were not permitted as part of the staff dress code. Finally, JM did not recall EB although she testified that she may have worked with her. On the other hand EB said she had met JM at both Bartender One and the Bar.

103I find these inconsistencies to be of little significance.

104Even if EB was correct and yoga pants were not part of staff the dress code that does not mean that JM, who believed they were, was not wearing them.

105Nor do I find the difference in the actual day of the week to be of much importance: there is no dispute that Mr. De Jesus placed his hand down JM’s pants after she had driven him home. The disagreement lies on the issue of consent.

106I take the same view with respect to JM’s memory of EB. It makes more sense that EB would remember JM as she was one of the senior figures at Bartender One unlike EB who was a new employee.

107I found JM to be an honest and credible witness. Her account of the events in question was not diminished in any material way. She answered all questions put to her as best she could and agreed with many of the suggestions made to her by Mr. Aly, on behalf of Mr. De Jesus. She did so even though her answers might not prove helpful to her testimony.

108For example, when asked by Mr Aly whether there had been a discussion about JM having an orgasm or whether she was on her period, she replied that she no recollection of any such exchange. However, she was willing to concede the possibility explaining that if there had been such a conversation it had only taken place because she wanted Mr. De Jesus to get out of her car.

109Although demeanour is of limited value in assessing credibility, I note that she did her best to answer the questions put to her and was not in any way evasive.

110JM was a senior employee of the bar and Mr. De Jesus had just joined. There was a huge risk to her career prospects if she was found engaging in a public sex act with him. I accept her evidence that she had no romantic interest in Mr. De Jesus and had no desire to have any sexual contact with him on that night or any other.

111I also accept her evidence that she told Mr. MacMillan about the assault but her complaints fell on deaf ears. I find that JM paid the price for her disclosure by being removed from work shifts at the bar.

112Mr. De Jesus also testified that Mr. MacMillan told him that JM had made comments about him. Mr. MacMillan informed Mr. De Jesus that after hearing what JM had to say he had asked her if the police should be called. It is beyond the orbit of belief that Mr. De Jesus would not have immediately demanded to know the details of JM’s complaint.

113Hearing what Mr. MacMillan had told him must have caused Mr. De Jesus great alarm and concern. Surely he would have wanted to know why Mr. MacMillan had responded to respond to JM’s complaint by involving the police. However, according to Mr. De Jesus he did not bother because Mr. MacMillan told him that JM had indicated “it was not like that”.

114Moreover, Mr. De Jesus also testified that did he not press the issue in his supposed reconciliation conversation with JM.

115I find Mr. De Jesus is simply not telling the truth.

116I find that JM did tell Mr. MacMillan about the allegations and Mr. De Jesus does not wish to acknowledge the fact.

117I should add that JM’s reporting of the complaint is not, of itself, evidence that the allegations are true. However, it impacts Mr. De Jesus’s credibility and his account that JM was embittered because he did not reciprocate her affections and became jealous on seeing Mr. De Jesus with another woman.

118To conclude, I reject Mr. De Jesus’s testimony and it fails to raise a reasonable doubt.

119On the balance of the evidence that I do accept, I find Mr. De Jesus guilty beyond a reasonable doubt on Count 1.

IV. DID MR. DE JESUS SEXUALLY ASSAULT EB?

120As with JM, there are only two witnesses who can directly testify about what happened.

121EB insisted she did not consent to any sexual activity and did not want Mr. De Jesus near her. Mr. De Jesus’ account is that EB initiated matters by jumping on him and kissing him.

122It is clear from their evidence that both had issues with the other. EB found Mr. De Jesus to be rude and aggressive, continuously making unwanted sexual comments. On the other hand, Mr. De Jesus thought EB to be lacking the proper work ethic and skills needed in the bar.

123This case is not about each other’s social and work abilities but whether the Crown has proven beyond a reasonable doubt that Mr. De Jesus sexually assaulted EB by digitally penetrating her without her consent.

124From the outset, EB’s evidence suffered from difficulties.

125First, her account of the sexual assault changed during the course of her testimony. When first questioned about the incident, EB told the Crown, Ms. Santora, that she was cleaning up in the kitchen when Mr. De Jesus approached her from behind, turned her around, talked to her and then “put his finger inside my pants and inside of me”.

126When Ms. Santora followed up to ask if there was any “sort of lead up”, EB replied “other than a conversation, it was - that was the act. There wasn’t much lead up”. When Ms. Santora returned to the topic shortly afterward, she asked EB whether there was any other physical contact between herself and Mr. De Jesus. EB replied “not that I remember”. Ms. Santora continued this line of questioning asking whether Mr. De Jesus made any physical contact with EB other than “the hand in your pants”. Again, EB responded by saying that was the only thing she could remember.

127At this point, Ms. Santora showed EB her prior police statement in which she had stated that Mr. De Jesus had kissed her before the assault and that she had possibly kissed him back. It was only then that EB acknowledged that there might have been some sexual activity that preceded Mr. De Jesus putting his hand down her pants.

128The in-court exchange is reproduced as follows:

Q. Okay. So, thinking back now, having read that and refreshed your memory, do you recall whether there were any - whether Mr. De Jesus made any other physical contact with you...

A. Yes.

Q. ...that day?

A. It did refresh my memory that he was trying to kiss me.

Q. And when you say “trying to kiss you”, was he successful?

A. I believe so, yes.

Q. And did you want him to kiss you?

A. No.

Q. Did you - how did you respond to the kiss or attempted kiss?

A. I don’t recall. It - the transcript says that I possibly kissed him back, but I don’t recall and I definitely - I do recall not wanting that.

Q. Was that before or after Mr. De Jesus put his hand in your pants?

A. That would have been right before.

Q. Did that continue while Mr. De Jesus put his hand in your pants?

A. No.

Q. So, just the portion right before?

A. Yes.

129In cross-examination, when shown the statement by Mr. Aly, EB initially agreed that she told police that “he kind of started like kissing me and then like he - he like put his finger like down my pants and like put inside me, like - like I did kiss him back a little bit, but it definitely wasn’t like wanted, you know, and I definitely didn’t want him to like finger me”.

130Later on, when again asked to confirm she had told the police EB responded by saying she was not sure and asked Mr. Aly to “pull up the transcript because it’s saying I’m not sure”. Mr Aly did so and read back the following passage:

And then like it - a little bit blurry, but he was like why do you like me, da da da, and then he kind of like pressed his body against me and like started kissing me and I kissed him back like a little bit, but wasn’t like fully wanted. And then he like put his hands like in my pants and like fingered me.

131When pressed to explain why she said she had kissed Mr. De Jesus back, and used the terms “wasn’t like fully wanted”, EB replied that Mr. De Jesus was a predator who forced himself onto her and that she was young, naïve and vulnerable.

132EB insisted that she was intoxicated and Mr. De Jesus forced himself on her. She clarified that when she said “fully” she meant that she “did not want it at all” and did not have the capability to push Mr. De Jesus away. Mr. Aly pressed the issue and asked EB to explain why she had told the police that “she kissed him back”. EB’s response was Because I don’t know. Like I said, I was - I’m a victim here. I was a victim of assault, someone who trapped me”.

133Mr. Aly, for the defence advances the argument that EB’s comments support Mr. De Jesus’s evidence that EB was attracted to him and initiated the sexual activity. He also points to EB’s agreement of Mr. De Jesus’s position that he asked EB “why do you like me” at the start of the incident.

134It goes without saying that EB’s evidence is inconsistent and troubling. I do not, for a moment, suggest that by kissing Mr. De Jesus back, EB either consented or indicated any type of consent to having Mr. De Jesus put his hand down her pants or, for that matter, any other type of sexual activity.

135However, from my vantage point, EB appeared evasive in answering these questions and seemed intent on deflecting the issues back to Mr. De Jesus.

136I accept that unwanted sexual activity can in many if not all cases be a traumatising event. Yet, it is very surprising that EB made no reference to being kissed by Mr. De Jesus or kissing him back when examined in chief and further, appeared to want to avoid answering questions about the inconsistencies in her testimony when cross-examined on the issue.

137I agree with Mr. Aly that EB seemed to be more intent on deflecting blame on Mr. De Jesus than responding to questions. In many instances, when being cross-examined, EB was non-responsive or simply asserted things were “blurry”.

138Those assertions would also prove contradictory. When Mr. Aly asked EB about any conversation that might have occurred before Mr. De Jesus touched her, she replied that “it’s blurry, the conversation was blurry”. When Mr. Aly followed up to ask if whether that was an example of her memory being blurry about the actual incident, EB replied “Just the conversation, just the word exchange. Physical acts, I have - I have very crystal clear what happened”. This answer does not explain why she could not remember the physical acts that took place immediately before the assault.

139A second area of concern arises from EB’s evidence regarding her knowledge about the unconscious sexual assault allegations which resulted in Mr. De Jesus’ conviction.

140Mr. Aly argues that EB knew of these allegations having seen published articles and being given details by VB.

141This topic was initially dealt with by the Crown. Ms. Santora asked EB if she had read anything in the media or spoken to anyone about other allegations concerning Mr. De Jesus. EB told Ms. Santora that someone had sent her an article but she had never really followed anything that happened because she was processing her own trauma.

142In cross-examination, Mr. Aly suggested to EB that contrary to her evidence in chief, she had read several articles about the unconscious sexual assault allegations with which Mr. MacMillan and Mr. De Jesus had been charged. EB disagreed explaining that she had read only one article which had been sent to her accompanied by a number for the police. It was this article that convinced her to report the sexual assault committed on her.

143Mr. Aly again confronted EB with her police statement in which she told police that she had read “other articles” sent by her friends. On seeing the statement EB changed her evidence and agreed that “it was possible” that she may have read “many articles”. However, she was unable to recall what details she learnt from them.

144Later on, Mr Aly asked EB to explain why she had told the police that she wanted Mr. De Jesus to get some sort of justice because there were a “lot of things” he could be charged for. EB replied that based on her experience and observing Mr. De Jesus whilst working at the bar “an evil person does evil things to people. I’m not surprised at all when reading those articles”.

145This would seem that contrary to her initial testimony: EB had read more than one article. The inference to be drawn is that EB knew many more details of the allegations than she cared to admit and instead tried to impart the impression that she had very little knowledge of them.

146There was also the discussion with VB about her sexual assault at Mr. De Jesus’s hands. In her examination in chief, EB testified there was no discussion and claimed that VB had not told her anything about what had happened between herself and Mr. De Jesus. EB said she was aware of rumours and insinuations and noticed that when VB began working at the bar, Mr. De Jesus appeared to switch his sexually aggressive behaviour and attentions from her to VB.

147Again, Mr. Aly cross-examined EB on this point. She repeated her denials of discussions with VB about any other allegations. EB insisted that she had no idea who the victims were. EB told the court that she had not spoken to “anybody about that or anybody who - ex-employees of College Street Bar”.

148Pursuing this line of questioning Mr. Aly asked EB if it was possible that VB had told her about the things that Mr. De Jesus had done to her. EB was emphatic that she could rule out that possibility. When Mr Aly asked how she could be sure of that fact given she had no memory of the conversation, EB replied: [b]ecause I was - I haven’t shared what’s happened to - I shared it with the police. I didn’t share it with other co-workers, to my recollection, because as - as I was still processing the evil trauma”.

149Mr Aly again referred EB to her prior police statement where she disclosed that she had spoken to VB and “actually the girl who assaulted - who was assaulted, [VB] said it was her friend”. EB added that she was not surprised about the allegations because VB had called her and “[s]he sent me, then she called me because she was like - I like - I want to hear your reaction and I read it and I was like man, you’re not surprised, man, I’m not surprised, like, like he - he’s - they’ve done this a bunch of times, like I don't know. But then, like I was like that sounds like Enzo”.

150After being confronted with this passage, EB admitted that she had spoken with VB about the allegations but maintained that she did not remember the details of the conversation. When it was put to her that it was possible that VB might have told her what had happened to herself, EB said she “did not know”. When Mr. Aly suggested that it was possible that EB might have told VB things that Mr. De Jesus had done to her, EB was definite in claiming that she had not because she was still processing the trauma.

151Finally, it was put to EB that she told the police that she wanted Mr. De Jesus to get some sort of justice because “there’s lots of things he could be charged for”. Mr. Aly suggested that these comments arose from EB’s conversation with VB who had told her about Mr. De Jesus’s sexual assault upon her and her friend. EB disagreed insisting that the comments were based on her experience and what she observed at the bar. According to EB, she saw Mr. De Jesus as an “evil person who does evil things to people” and saw this when she started working at the bar.

152Reviewing the cited passages, I find that EB was not being truthful about her conversations with VB and her prior knowledge of the other assaults that Mr. De Jesus had been charged with. It is clear, contrary to her initial testimony that EB had read several articles about the other allegations. This omission is important because Mr. Aly suggests that EB knew of the prior assaults and sought to implicate Mr. De Jesus by repeating the same allegation.

153If VB was “reaching out to her” as EB claimed it would have been for the purpose of telling her about the sexual assault allegations. I find it hard to believe that EB would not remember the details of that conversation. I also find it difficult to accept EB’s evidence that she could definitively rule out telling VB what Mr. De Jesus had done to her when she claimed no memory of the conversation.

154I also reject EB’s explanation that telling the police that there were “other things” Mr. De Jesus could be charged with came from her experiences of seeing the dark side of Mr. De Jesus when she first met him.

155Her evidence of her initial experiences with Mr. De Jesus, whilst unpleasant, hardly describes a person who is committing evil criminal acts on others. I find it far more likely that her comments were based on what VB had told her.

156Moreover, as with other aspects of EB’s evidence, her testimony on this issue changed once she was reminded that she had told the police something different on a prior occasion.

157I conclude that EB had been given details of the other allegations by VB and was trying to conceal that fact.

158EB also testified about using cocaine with Mr. De Jesus after the assault. According to her, after the event she took cocaine with Mr. De Jesus and Mr. MacMillan. EB made it clear that she was not forced to take the cocaine but did so because of peer pressure.

159In cross-examination, she agreed that she had taken cocaine before working at the bar but used it with Mr. De Jesus after the assault because she felt victimised and vulnerable and did not feel like she had a choice. She described the peer pressure as coming from her peers “superficially” Mr. De Jesus.

160I accept that there is no particular way in which a sexual assault victim would act in relation to the person who assaulted her. I find EB’s consumption of cocaine and continued association with Mr. De Jesus after the kitchen incident to be of little relevance in deciding whether Mr. De Jesus sexually assaulted her. She is certainly not to be judged on these actions.

161However, I do find it significant that when asked why she would have taken cocaine unwillingly, EB specifically pointed the blame at Mr. De Jesus. Whilst I accept cocaine was offered to EB, and there might have been peer pressure from other staff, it is hard to understand why Mr. De Jesus would be identified as a specific “peer pressure”.

162I agree with Mr. Aly that EB’s testimony made it appear that she was forced to take the cocaine at Mr. De Jesus’s behest, something that makes no sense when she had used it on prior occasions and was getting the drug with no payment.

163The concerns that I have set out are significant. Each standing alone might not be enough to create a reasonable doubt about Mr. De Jesus’ guilt. However, cumulatively, their impact leaves me unable to find the Crown has discharged its heavy burden of proof in a criminal case.

164I must make it clear that this conclusion is not a finding that EB was lying or that the sexual assault did not occur.

165It is simply a recognition that I am unsure about what happened and that a reasonable doubt exists.

166Although Mr. Nathanson, for the Crown, argued that if there is any doubt, the similar fact evidence should be enough to take the threshold for conviction “over the line”, I cannot agree. Even applying JM’s evidence to Count 2 would not be enough to overcome the deficiencies in the Crown’s case.

167That being the case, Mr. De Jesus is entitled to a verdict of not guilty with respect to count 2.

168I wish to thank both sets of counsel for their very helpful submissions and the manner in which they conducted the trial.

S.A.Q. Akhtar J.