COURT FILE NO.: CR-21-00000011-00AP
DATE: 2021 10 26
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
M. McGuigan, for the Respondent
Respondent
- and -
JEFFREY KOLBASNIK
D. Humphrey, for the Appellant
Appellant
HEARD: August 18, 2021
REASONS FOR JUDGMENT
[On appeal from the Judgment of Epstein J.
dated November 30, 2020]
DENNISON J.
Overview
[1] The appellant was convicted of sexual assault. The trial judge found the appellant touched the breast, of a female staff member at the hospital without her consent. He worked as a general surgeon, and she was a housekeeper at the hospital. He received a suspended sentence and twelve months probation.
[2] The complainant and appellant both testified at trial. The issue at trial was whether the Crown had proven beyond a reasonable doubt that the complainant did not consent to the touching or kissing. The credibility of both witnesses was crucial to this determination.
[3] The appellant submits that the trial judge made several errors in his credibility assessments. It is the appellant's position that these errors either individually or cumulatively are sufficient to find that the verdict would not necessarily have been the same and the appeal should, therefore, be granted.
Summary of the Evidence
[4] The appellant was a general surgeon, and the complainant was a housekeeper at the Milton District Hospital. The trial focused on three interactions between the complainant and the appellant over the years. The first two interactions were relevant to the nature of their relationship and the third interaction formed the basis of the charge.
[5] With respect to the first incident, the complainant testified the appellant asked for a hug and a kiss. She was surprised and uncomfortable but agreed she consented to the hug and kiss. The appellant testified the complainant asked for a hug, and she kissed his cheek. They then went their separate ways. This interaction took place in either 2016 or 2017.
[6] With respect to the second incident, the complainant testified the appellant again asked for a hug, and she complied. The appellant then told her she was tight and started to massage her back. She testified she did not want him to massage her, but she thought she should "get it over with." She thought he used to be Chief of Surgery, and she was trying to be respectful. His hand moved from the back of her shoulders to just under the neckline of her scrubs, above her breast. She put her hand on top of his and said she had to go. The appellant asked for a kiss, and she said she had to go. She gave him a kiss on the cheek.
[7] The appellant testified that when he saw the complainant she asked for a hug, and they hugged for a prolonged period of time. She was very tense and he began to massage her lower back. He moved to her shoulders and to the top of her breast and said, "I gather this is far enough?" She put her hand over his and said, "Yes, that is far enough." He stopped. They then walked out together, and she gave him a quick kiss.
The Third Incident
The Complainant's Evidence
[8] The complainant was firm that the third incident happened on August 14, 2018, because she told her friend about the incident on August 15, 2018, which resulted in Human Resources ("H.R.") becoming involved. The complainant is incorrect about the date.
[9] The complainant testified that she was nervous when she saw the appellant coming down the hallway because of the earlier incidents. She headed into the cardiac area to avoid him. She found another doctor in the room. That doctor left and the appellant entered the room.
[10] They engaged in small talk and the appellant asked her for a hug. She gave him a hug, but she was extremely tense. She felt pressured and wanted to end the hug.
[11] The appellant held her tightly and began squeezing her right breast. He started to ask her questions about whether she was married. She told him she had a boyfriend. She could not pull away. She told the appellant three or four times that another doctor had just been there, and he may return. She testified that she felt like an idiot for not telling him directly to stop, but she froze. He was a surgeon and she was a housekeeper. She was concerned about the respect he was due because of his position, and she was conscious of the power imbalance between them. Her body language was clear she was not consenting.
[12] She testified that the appellant asked for a kiss, to which she replied, "Dr. Kolbasnik?" in a quizzical tone. Her facial expression was clear that she was not interested. He asked for a little kiss and said, "On the cheek?" She replied in an annoyed tone, "On the cheek." He then kissed her on the cheek but caught her on the corner of the lips. She immediately walked out.
[13] In cross-examination, the complainant denied that her hands were on the appellant's buttocks. She was firm that it had been his right hand on her breast, until she was impeached with her police statement in which she said it was his left hand. The complainant explained the error as she reconstructed their body positions in her mind.
[14] The complainant testified she told a co-worker, who was also a friend, about the incident the day after it occurred. She was adamant about when the third incident occurred.
[15] Ultimately, her friend convinced her to go to H.R. H.R.'s response was frustrating to the complainant, so eventually she went to the police and reported the matter.
The Appellant's Evidence
[16] The appellant testified the interaction occurred on August 13, 2018. This was confirmed by hospital electronic records that record swipe card access to the hospital.
[17] The appellant testified he saw the complainant from some distance and followed her into the cardiac area. They took steps towards each other and mutually embraced. The hug did not last long, and he then asked if he could have another kiss. She responded, "You know you have to be good Dr. Kolbasnik." He took that remark to be reference to him being married and not that she was uninterested. He thought she was being playful and flirtatious. They then kissed each other on the lips for a second. He waited until she leaned towards him before he responded. The kiss was followed by one or two more short kisses.
[18] The appellant testified he removed his right hand from around her back and placed it on her upper chest. He did not cup the breast. His fingers were pointed up and his palm was down, a little to the right of the center of her chest. He agreed that the lower part of his hand might have touched just the top of her breast.
[19] He explained that she then lowered her hands to his buttocks, and he maintained his arm around her lower back. In this position, he asked her if she had any kids and if she was married. She told him she had a boyfriend. The conversation was pleasant. They quickly kissed one more time and disengaged.
[20] The appellant testified he said something about wanting to see some of the old hospital space and left for a few seconds. When he returned, he approached her for another embrace and she told him "sternly" that she had to get back to work. He stated he had no sense that she was upset with their encounter.
[21] The appellant admitted that he followed the complainant because he wanted to see her. He wanted to follow up with her to see if she would kiss him, as she had previously suggested she would.
The Apology
[22] The Chief of Staff requested a meeting with the appellant. The appellant stated he racked his brain to figure out why. He thought at first it might have to do with patient care, but then thought perhaps the complainant was upset about the marital questions he asked or him keeping her from her work. He sought her out at the hospital to apologize. He saw her and walked up to her. He put his hand on her forearm and said that he hoped he had not done or said anything the other day that upset her, and if he had, he apologized.
[23] The complainant testified she was taken aback when the appellant approached her because she had been assured by H.R. that she would be notified when he was told about her complaint. She was extremely uncomfortable. She told him "it was inappropriate."
The Trial Judge's Reasons
[24] The trial judge recognized that it was not proper to choose between the complainant's evidence and the appellant's evidence, but rather he had to apply the framework set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at pp. 757-58. Ultimately, he had to be satisfied beyond a reasonable doubt about the appellant's guilt.
[25] The trial judge found that, for the most part, the complainant was an excellent witness. He found her evidence compelling and detailed.
[26] At trial, the appellant's counsel submitted that while not required to do so, the complainant did not say no to the defendant or walk away or make it clear to him that she absolutely wanted nothing to do with his flirtations.
[27] In addressing this submission, the trial judge noted the power imbalance between the complainant and the appellant. He stated "there was a clear imbalance between her a black housekeeper and him, a white surgeon and former Chief of Surgery. She referred to it often in her evidence."
[28] The trial judge also recognized that there were inconsistencies in the complainant's evidence. She was clearly wrong about the date of the incident. The trial judge disagreed with the appellant's suggestion that the complainant's inconsistency about which hand grabbed her breast was significant. The complainant explained in her testimony how she recreated the relative positions in her head and had mixed up the two. The trial judge also held that there were other minor inconsistencies about the order of events when the complainant described the kissing and hugging. However, the trial judge found the thrust of her evidence to be clear, and it remained "unscathed" during cross-examination.
[29] The trial judge had a distinct impression that the appellant was alive to the power imbalance in answering questions about the hospital atmosphere. The trial judge rejected the appellant's evidence that it never crossed his mind that extra care was needed in his flirtations with the complainant because of their respective positions in the hospital.
[30] The trial judge found the appellant's inconsistency as to when and how he touched the complainant's back significant. In examination in chief, the appellant described an incident prior to the three main incidents where the complainant was cleaning the operating room ("O.R.") and he touched her back. When asked about this in cross-examination, he did not recall touching the complainant's back in the O.R., but had touched her on the side of the hip. The trial judge found that the appellant's "stumbling on this evidence caused him concern about [the appellant's] testimony about the nature of the history of the relationship." The complainant was not asked in cross-examination about this incident.
[31] The trial judge also had concerns with the appellant's evidence regarding the second incident. It did not make sense that the appellant asked if his hand was far enough when he came close to the complainant's breast, when he also said he had no interest in going further. The trial judge was inclined to accept the Crown's suggestion that the appellant was "testing the waters."
[32] The trial judge did not accept the appellant's evidence that there was nothing inappropriate in massaging the shoulder of a female housekeeper while alone in a room, nor in moving his hands towards her breast or hugging and kissing her with his hands on her lower back and her hands on his buttocks.
[33] The trial judge accepted the complainant's evidence that she did not want the third incident to occur.
[34] The trial judge rejected the appellant's evidence that he placed his hand on her upper breast and not on her breast. The appellant said he placed his hand for no purpose. The trial judge held that it was a strange and unnatural action, and instead believed the complainant's evidence that the appellant touched her breast.
[35] The trial judge also rejected the appellant's evidence that the only thing he could think of when the Chief of Staff called him to a meeting was that the complainant had complained to H.R. about him asking her marital status. The trial judge found that this explanation "stretches credulity beyond the breaking."
[36] Ultimately, the trial judge accepted the complainant's evidence that she did not consent to having her breast touched. The appellant did not seek her consent, and in the circumstances, he could not have reasonably believed she consented to having her breast touched.
Issues
[37] The appellant submits the trial judge made several errors individually and cumulatively that would have resulted in a different verdict had errors not occurred. The issues raised in the appeal are as follows:
Did the trial judge err in his analysis of the power imbalance by considering race when race was not raised by either party during the trial?
Did the trial judge misapprehend the appellant's evidence about the inappropriateness of his actions?
Did the trial judge draw an adverse inference from the failure of appellant's counsel to put questions about a prior act of touching to the complainant pursuant to Browne and Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H. L.), and if so, was this appropriate?
Did the trial judge err in finding the appellant was "testing the waters?"
[38] The Crown submits that the grounds raised by the appellant are a veiled attempt to have this court retry the case and substitute a different verdict. The alleged errors are based on minutiae and are a parsing of the reasons.
Standard of Review
[39] The factual findings of a trial judge are owed significant deference and must not be interfered with unless there is a clear error in principle or the factual findings are unavailable on the evidence: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 24 and 36-37.
[40] Deficiencies in the trial judge's credibility analysis will "rarely" justify intervention on appeal: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. However, a failure to sufficiently articulate how credibility concerns were resolved may constitute a reversible error. The focus of review is on whether the trial judge's reasons explain to the accused "why the trial judge was left with no reasonable doubt": Dinardo, at para. 26, citing R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21.
[41] As recently stated in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, trial reasons have an important role in the criminal justice system. Trial reasons ensure that "judges are held accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done": G.F., at para. 68, per Karakatsanis J., citing R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 42 and 55.
[42] When reviewing a trial judge's reasons, the reviewing court must take a functional and contextual approach. Appellate courts "must not finely parse the trial judge's reasons in a search for error": G. F., at para. 69. The appellate court "must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review:" G. F., at para. 69; see also R. v. Chung, 2020 SCC 8, 443 D.L.R. (4th) 393, at paras. 13 and 33; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; Dinardo, at para. 25.
[43] It is not enough for the appellant to point "to ambiguous aspects of the trial decision" to be successful on appeal. The appellant has not discharged his onus where the reasons are ambiguous and all that can be said is "a trial judge may or might have erred." In addition, where ambiguities in a trial judge's reasons are open to multiple interpretations, the interpretation that is consistent with the correct application of the law must be preferred over the suggested error. It is only where the ambiguities, when read within the entire record, "render the path taken by the trial judge unintelligible that appellate review is frustrated": G.F., at para. 79.
Issue #1: Did the Trial Judge Err in his Analysis of the Power Imbalance?
[44] A misapprehension of evidence includes "a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence": R v Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 83. The misapprehension of the evidence must be material rather than peripheral to the trial judge's reasoning: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4.
[45] The appellant submits that the trial judge erred in presuming a "race- based" power imbalance. There was no evidence at trial that the complainant's race had anything to do with the power imbalance between the complainant and the appellant. There was also no evidence introduced about the complainant's race or how she racially identifies. The appellant submits it was procedurally unfair for the trial judge to rely on race in finding the power imbalance when it was not raised by either party.
[46] The Crown argues there is no misapprehension of the evidence. The trial judge's expression of the complainant as Black and the appellant as White is no more than an accurate description of the parties that appeared before him. The trial judge did not state that he found a power imbalance based on race. Moreover, any ambiguity as to whether the trial judge considered race must be interpreted as that the trial judge applied the correct law.
[47] When the reasons are read as a whole, I do not find the trial judge found the power imbalance to be based on race. Even if there is some ambiguity found in the language it should be read to find that he did not consider the power imbalance to be based on race. The appellant is asking this court to improperly engage in finely parsing the trial judge's reasons in an attempt to find an error.
[48] In closing submissions, the appellant's counsel submitted that the complainant's evidence was implausible that she never said no or did not make it clear to the defendant that she was not interested. The trial judge responded to this submission as follows:
In that regard, I am of the view that the clear power imbalance between her, a black housekeeper, and him, a white surgeon and former chief of surgery, is of importance. She referred to it often in her evidence. She indicated that she was raised to respect others. She was loathe to be impolite to him. She found him a friendly man, but just wanted his attention towards her to stop. She is a friendly and out-going person, but not aggressive, and it was not in her nature to forcefully reject him. [emphasis added]
[49] The above paragraph is the only place in the trial judge's reasons where he mentions the race of the complainant and the appellant. Nowhere in the reasons does the trial judge say there is a race-based power imbalance. Rather, the trial judge explained that the basis for the power imbalance came from the complainant's evidence. The complainant's evidence of the power imbalance included the following:
i. The complainant testified she would hug co-workers or patients, but never doctors.
ii. When asked if she ever used the word "stop," she said she froze. She stated, "With respect, he's a surgeon, I'm a housekeeper. I froze but my body language was so uncomfortable."
iii. After telling her co-worker Lisa, the complainant stated she was thinking, "H.R. will not believe me. I'm a housekeeper. He is a surgeon; he makes a lot of money. They are not going to believe me."
iv. During the H.R. meetings the complainant attended, she was told by H.R. that doctors had privileges which make things complicated. This response made her feel that she was not as important as the appellant. She stated she went to police to uncomplicate things because the police do not see status.
[50] The fact that the power imbalance was based on the complainant's and appellant's position in the hospital as opposed to race is reaffirmed throughout the trial judge's reasons.
[51] Later in his reasons, the trial judge held that the thrust of the complainant's testimony was clear and remained essentially unscathed during cross-examination. He then explained:
The power imbalance between the parties is obvious, and from the outset, hovered over the entirety of the evidence in my view. During her cross-examination of the defendant, the Crown set out to explore this issue by asking questions concerning his perception of how he was treated in the community and at the hospital because of his standing as a surgeon. I had the distinct impression that the defendant was clearly alive to the issue and that his answers to these questions were disingenuous. He did not recognize that he was accorded extra respect because of his position and said that the hospital atmosphere was non-hierarchical. He professed in his answers and in his attitude that this concept was foreign to him. He said that it never crossed his mind that extra care had to be taken in his flirtations with the complainant because of their respective positions in the workplace. I do not accept that evidence as he gave it. I had the clear impression that he was attempting to minimize the importance of this issue by essentially claiming to have been oblivious to it.
[52] Again, in his reasons the trial judge stated the complainant's versions of events are different from the appellant's. Her version is "that of an insignificant hospital worker being harassed in an offensive manner by an important senior doctor."
[53] There was ample basis to find a power imbalance between the complainant and the appellant given their different positions within the hospital. The fact that the complainant also described working at the hospital as working with "a small family" that is "friendly, civil, and kind," does not undermine the evidence of the power imbalance in this case.
[54] Even if I am wrong and the trial judge did give some weight to race in considering whether there was a power imbalance, I would not find this to be an error. As held in R. v. Theriault, 2021 ONCA 517, at para. 146, "it is incumbent on trial judges to consider relevant social context, such as systemic racism, when making credibility assessments." The fact that the complainant was Black is a relevant contextual factor for the trial judge to consider in assessing the complainant's evidence that she felt she could not say anything to the appellant about his conduct. Moreover, any consideration of the fact that the complainant was Black did not overwhelm or determine the trial judge's finding that there was a power imbalance between the complainant and the appellant. Her race, just as her sex, are contextual factors that the trial judge is entitled to consider in assessing whether the complainant truly believed there was a power imbalance between herself and the appellant.
[55] In this case, there was ample evidence to find a power imbalance irrespective of the complainant's and appellant's race, and therefore I do not find that the trial judge erred by referring to the race of the parties in his reasons.
Issue #2: Did the Trial Judge Misapprehend the Appellant's Evidence about the Inappropriateness of his Actions?
[56] The appellant also submits the trial judge misapprehended the appellant's evidence in finding the appellant did not believe there was anything inappropriate about his actions because he was married. The trial judge stated:
I also do not accept that he thought that there was nothing at all inappropriate about this encounter, either because he was married or because it was happening in the workplace. He is an intelligent man; I cannot conceive that massaging the shoulders of a female housekeeper when alone in the room with her and moving his hands towards her breast and saying he supposed he would stop there. Then hugging and kissing her with his hand on her bare lower back and buttocks as he describes, did not register with him as being inappropriate. I do not accept this denial.
[57] The appellant testified that it did not enter his mind that it was inappropriate to hug the complainant on either the first or second occasion because he was married. With respect to the massage, the appellant testified that he did not think it was inappropriate because they were in the workplace.
[58] Based on the evidence, it was open to the trial judge find that he did not believe the appellant's evidence that he did not think there was anything inappropriate about his interaction with the complainant.
Issue #3: Did the Trial Judge make a Browne and Dunn Error?
[59] The rule in Browne v. Dunn is rooted in fairness. Where counsel intends to impeach an opposing witness on a matter, fairness requires that the contradictory version be put to the witness in cross-examination so that the witness has an opportunity to explain.
[60] In considering if the trial judge made a Browne and Dunn error, it is helpful to review how this issue arose.
[61] A s. 276 of the Criminal Code, R.S.C. 1985, c. C-46 application, was granted prior to trial with respect to the first two incidents to establish the nature of the relationship between the complainant and the appellant. The third incident formed the basis of the charge before the court.
[62] The appellant testified about earlier incidents that did not form part of the s. 276 application that occurred before the three incidents that were admissible at trial.
[63] The appellant testified the complainant touched his arm on a prior incident, and he responded by touching her arm and lower back. The appellant testified this was the first time he touched her back. He later testified it was not in fact her lower back but her hip. When asked again to confirm his evidence, the appellant said he did not recall saying her hip, and said instead he touched her side. He testified she touched his arm first. He stated that he did not think there was a need for touching her hip; it was reciprocation after she touched him.
[64] The appellant's defence was that he and the complainant engaged in flirtatious, consensual interactions.
[65] The Crown in closing submissions suggested that the evidence of this prior incident was not put to the complainant in cross-examination, and it should have been as this was relevant evidence.
[66] In response, counsel for the appellant noted that if there was a failure to put the evidence to the complainant, it was counsel's fault. He did not put the question to the complainant because of the s. 276 application. He submitted the Crown should have sought a lesser remedy than drawing an adverse inference, such as recalling the witness. Counsel further submitted that the incidents were insignificant and irrelevant to what was alleged to have occurred in 2018.
[67] I do not find that the trial judge made a Browne and Dunn error. Nowhere in the trial judge's reasons does he state that he is drawing an adverse inference from the failure to question the complainant about the prior incident.
[68] The trial judge's reasons state as follows:
The position of the defendant is that he and the complainant enjoyed an occasional and consensual flirtatious relationship. Of course, she paints a different picture ... In light of this, it was important to the defendant that he recall and testify to activity which supported his claim of a flirtatious history between the two. Early in his examination in chief, he was asked about this by his counsel. During this period of this questioning, Mr. Humphrey made it clear three separate times that he was referring to the interactions with the complainant that had occurred prior to the first of the three incidents described in detail by the two. He specifically asked what had led the defendant to say that the relationship had appeared flirtatious. The defendant said – testified that he and the complainant were always smiling at each other and that, on occasion she would touch his arm and he would touch her arm or lower back. Indeed, he went on to describe one incident in particular, which he felt demonstrated the flirtatiousness between them. He said that she was cleaning in the O.R. and made some reference to hoping that she was not holding him up, as he had a reputation for working quickly. He said that this was the first time he recalled touching her lower back. He was cross-examined about this by the Crown. He then said that he did not recollect touching the complainant's back. He said that he did not think he had said so in chief. He then said that he had not touched her on the back in the O.R. incident but had touched her on the side of the hip. In my view this inconsistency is not insignificant. It cannot be attributed to a faulty memory due to the elapsed time from the incident to the testimony. It was clear to me that the defendant's position was that the complainant not objecting to him touching her lower back was critical to his thinking that their relationship was flirtatious. He even professed to have a clear recollection of when that had first occurred. His stumbling on this evidence causes me concern about his testimony regarding the nature of the history of his relationship. The issue of the defendant putting his hand occasionally on the back of the complainant prior to the first incident, was not put the complainant during her cross-examination. [Emphasis added.]
[69] The thrust of this paragraph is that the appellant's evidence about touching the complainant on the prior occasion is inconsistent. The trial judge did not find this to be a minor inconsistency, given its importance to the appellant's defence that this was the commencement of the flirtatious relationship.
[70] I do not read the paragraph as stating that the trial judge drew an adverse inference because the complainant was not questioned about this incident. At its highest, the trial judge's comment is ambiguous and open to two different interpretations.
[71] One interpretation is the trial judge's statement that the complainant was not cross-examined on this point simply tells the reader the trial judge did not have any evidence from the complainant on this issue to consider.
[72] I prefer this interpretation given that the trial judge does not state that he drew an adverse inference about this evidence because of the failure to put the prior incident to the complainant. The adverse inference drawn by the trial judge was based on the inconsistencies in the appellant's evidence. The trial judge is presumed to know the law. Browne and Dunn permits, but does not require, a trial judge to draw an adverse inference from the failure to cross-examine a witness on a particular issue or fact. Had the trial judge wished to exercise his discretion and draw an adverse inference, one would expect that he would have said he was doing so.
[73] Even if the trial judge did draw an adverse inference from the failure to cross-examine the complainant on the prior incident, it would not result in an error. While the Crown should have raised this issue after the appellant testified and before closing submissions, this is not a situation where the Crown lay in wait. The appellant was the last witness. The trial judge never canvassed recalling the complainant because he was never asked to do so. The position of the appellant's counsel was that these incidents were irrelevant and removed significantly from the time of the offence: See for example R. v. Vorobiov 2018 ONCA 448, at para. 51.
[74] I also do not find that the appellant was unduly prejudiced by the Crown asking the appellant why defence did not put this evidence to the complainant. In R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 134 C.C.C. (3d) 131 (Ont. C.A.), at para. 19, the Court of Appeal found that the Crown had asked unfair questions implying that the appellant had acted improperly in his defence by not cross-examining the Crown witnesses. This case is distinguishable from Henderson. This was not a jury trial, but a judge sitting alone. There was not the same risk that a jury would give improper weight to the evidence because a trial judge is aware of the law and how to apply it. Moreover, there is no indication that the trial judge gave any weight to questions in the Crown's cross-examination in deciding the credibility of the appellant.
Issue #4: Did the Trial judge Err in Finding the Appellant was "Testing the Waters?"
[75] The appellant also submits that the trial judge took an overly critical and erroneous approach in finding the appellant was "testing the waters." The appellant submits that the finding that the appellant was testing the waters demonstrated that the appellant was mindful of the need for consent and the need to stop when consent was no longer present and supported his credibility.
[76] The trial judge had concerns with aspects of the appellant's evidence with respect to the second incident. For example, the appellant professed not wanting anything more than some innocent flirtation, yet after massaging the complainant's shoulders he began to inch his hand towards her breast. The trial judge pondered that if the appellant had no interest in going further, then why would he ask the question "I gather this is far enough?" It was in this context that the trial judge held that he was strongly inclined towards the Crown's suggestion that the appellant was testing the waters. The trial judge also noted that even after the appellant stopped the massage, he then asked the complainant for a kiss.
[77] The trial judge ultimately found that the appellant exerted pressure on the complainant in subtle ways. While the appellant did not physically force himself on the complainant, he persistently tried to hug and kiss her and eventually touched her breast to "see how far he could take this." The fact that the appellant asked the complainant on one occasion how far was enough, and then stopped touching the complainant, does not undermine the trial judge's finding that the complainant did not consent to having her breast touched on the third incident, nor does it demonstrate that the trial judge took an unfair approach in assessing the appellant's evidence.
Conclusion
[78] There was overwhelming evidence to find a power imbalance between the appellant and complainant based on their roles in the hospital. It was open to the trial judge to accept that, in those circumstances, the complainant did not consent to the sexual touching by the appellant as charged.
[79] The trial judge's reasons when read as a whole explain why he was satisfied beyond a reasonable doubt that the appellant committed the sexual assault. The conviction appeal is dismissed.
Dennison J.
Released: October 26, 2021
COURT FILE NO.: CR-21-00000011-00AP
DATE: 2021 10 26
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JEFFREY KOLBASNIK
Appellant
REASONS FOR JUDGMENT
Dennison J.
Released: October 26, 2021