Warning An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue and an order under s. 648 is now in place. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Offence
(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21 ]
COURT FILE NO.: 15167-19 DATE: 20230112
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – C.M. Defendant
Counsel: Samantha Saunders, for the Crown Peter Thorning, for the Defendant
HEARD: May 17, 19, 20, 24, 25, 26, 27, 31, June 1, 2, October 31 and November 4, 2022
C. VERNER j.
JUDGMENT
1C.M. was charged with 24 sexual assault related offences involving five complainants. At the request of the Crown, four of the charges (counts 17-20) were stayed before C.M. was arraigned. At the invitation of the Crown, after the Crown’s case was closed, I found C.M. not guilty on three further counts (counts 7, 9 and 13). I now consider whether the Crown has proven C.M.’s guilt on the remaining 17 counts, which relate to four complainants, namely C.G., R.R., E.R. and V.F.
2C.M. and his wife D.M. owned a breakfast restaurant in Whitby and the four complainants were all female servers at the restaurant between the ages of 17 and 25. D.M. supervised the uniformed servers, while C.M. supervised the kitchen staff.
3In addition to the five complainants, the Crown also called a sixth employee who was not a complainant named D.T., one of the complainant’s boyfriends, J.C., as well as a police officer who often ate at the restaurant, Officer Lamb. The Defence called a regular customer at the restaurant named Bob, a police officer who took a statement from a complainant named Officer McQuoid, and recalled R.R. (one of the complainants). Neither C.M., nor his wife D.M. testified.
C.G.’s Allegations
4One of the complainants, C.G., worked at the restaurant from the age of 22 to 25. She loved working there from the start and quickly became close friends with C.M.’s wife, D.M. By 2018, she was spending some of her free time at the restaurant; she would often eat there, she socialized with the regular customers and she stayed after many of her shifts until her boyfriend could pick her up.
5On one occasion, as a surprise for C.G., C.M. and D.M. bought her a ticket to a Blue Jays game. The three of them went together from Durham to the game in and on route they consumed alcohol supplied by C.M., such that C.G. was drunk by the time they got to the game. She does not believe she had more than one drink at the game itself.
6D.M.’s father drove them back to Durham after the game. C.G. was in the passenger seat and C.M. was behind her in the back seat. According to C.G., C.M. reached around the front seat and “stroked” her side and on her stomach, both over and under her shirt. He had his face pressed up against the back of her chair. The stroking continued on and off throughout the trip from Toronto to Durham. She felt “inebriated from the day”, but was “of clear mind”. D.M.’s father dropped the three of them off in Whitby, where they got into D.M.’s vehicle. D.M. was driving and C.G. and C.M. were in the back seat. As C.G. got in the back with C.M., he grabbed her behind momentarily. At that point of the evening, he was being vulgar with C.G. and told her more than once that he was interested in sleeping with her. The next day, he said to her, “you good?”. She responded in the positive and they never spoke of that event again.
7C.G. testified that after D.M. became pregnant in late 2017, C.M. became inappropriately touchy feely. He showed her a photo of his penis on his phone. He often massaged her shoulders while she was in or near the kitchen. And he “always” grabbed her behind. She did not provide any detail about any incident when he grabbed her behind.
8However, she did provide significant detail with respect to one inappropriate incident. One time, when she was cleaning mugs, he came up beside her and was masturbating. She dropped the mug she was cleaning and walked away from him. She told him to pull his pants up and said, “C.M. What the Hell. I got to get the cups done.” He followed her laughing. He told her to bend over. He then went to the back of the restaurant and when he returned he said, “that was fun”. When asked to clarify how many times he masturbated in her presence, she testified once, maybe twice, but no more. However, she told police it probably happened three times.
9C.G. then recounted two violent sexual offences that occurred while she was alone in the restaurant with C.M. before it opened at 7:00 am. She testified that one morning in early April, 2018, she was going through her usual routine of preparing the restaurant to open. As she came out of the tiny office, C.M. was standing in front of her naked. He possibly had on his shoes and socks. As she exited the office, he grabbed her hand and brought it towards his penis. There was a struggle. She got away and ran to the men’s washroom.
10In the washroom, she went into a stall and C.M. followed her in. He locked the stall. There again was a struggle. He was trying to get her pants down. During the struggle, he “bear hugged” her legs as she was standing; at times she was on her back and at other times he was on his back. She managed to get out of the washroom stall and out of the washroom. She ran to the front of the restaurant (where the customers eat), and she and C.M. ran into each other, causing her to slam against a partition and hurt her hand. She yelped. He asked if she was “okay”. When she responded in the negative, he bear hugged her legs again.
11She escaped his grasp and went to the women’s washroom. He followed her in, and there was a struggle there on the floor. She was on her stomach on the floor. He successfully got her pants down far enough to digitally penetrate her. She did not know if he put one or multiple fingers inside her, but she felt his hand jamming inside her. She will never forget that feeling. He then licked her vagina from behind. The assault seemingly ended abruptly at that point. He helped her up, asked if she was okay, and told her that he “loved” her. She responded that she loved him too.
12C.G. testified that she was not alone with C.M. again in the restaurant until April 11, 2018. When she was leaving work the night before, on April 10, she realized she would be alone with him the next morning and she arranged things that afternoon so that she could stay in view of the front windows when she came in to open the restaurant the next day. That night at home, she considered how she could collect evidence if he tried to harm her again. She considered whether she could record his actions in some way. When she got up on April 11, she intentionally wore “extra” clothing, including a shirt under her uniform, and she brought her wallet, rather than her purse so she did not need to put her purse away at the back of the restaurant.
13When she arrived at work at 6:30 am on April 11, 2018, she saw C.M. in the kitchen. She started cutting up fruit, facing the kitchen with her back to the front window. It was part of the opening routine. By 6:35 am, C.M. had come up behind her and started to massage her shoulders. He then hooked his thumb into the back of her pants and she immediately thought, “Ok, he’s doing this again.” He took her down to the ground. She felt that she could push him off somewhat during the first assault days earlier, but that this time she could not. She believed that he had learned how she fought him off and he had accommodated for that. They wrestled on the ground.
14She managed to get up and move to the hallway where she slammed his head into the wall. She kept saying “C.M., It’s me, don’t do this”, hoping that it would snap him out of his mindset. She had known him for so long and could not believe that he was attacking her. He did not react. He said that he liked it when she fought back and told her that if she let him see her “pretty little nipples, this will all end”. He pulled her pants down and stuck his finger or fingers inside her vagina. He left them there. Her shoe came off at one point. The wrestling match went on “forever”.
15At a couple of points, she managed to see a clock. At one such point, it was 6:59 and the other time it was 7:01. She knew then that the assault had to end soon since the restaurant opened at 7:00 am and they had a customer named Bob, who regularly was there when the restaurant opened. When she had an opportunity to escape, she grabbed her shoe which had come off during the attack, grabbed her wallet and ran to the vestibule at the front of the restaurant.
16She sat in the vestibule and cried for a few minutes. She was “sweaty and red all over” and since her skin was pale she admitted that it would have been noticeable that she was red. She was a “mess”, her hair was “soaking wet” from the sweat. Her make up was streaked or smudged. Her eyebrows had gone up on her forehead. And her bra was wrapped around her shoulder. She “just looked horrible”.
17She went into a stall in the woman’s washroom to collect herself. She took off her undershirt to fix her bra and was putting her shirt back on when C.M. came into the washroom. He put his head over the stall and asked if she was okay. She did not answer. He came into the stall and walked towards her. He kissed her and told her that he wanted her. They left the washroom together, to find Bob standing in the restaurant. Bob said something to her the effect of, “7:00 really snuck up on you, eh?”. She told Bob that she needed to fix herself up.
18She returned to the bathroom to do just that, since although she had fixed her bra by that point, she was still “a mess”. C.M. followed C.G. into the washroom yet again. He told her that she was “so sexy” and again told her that he wanted her. She pushed him “really hard” and told him that Bob would know something was wrong. C.M. left the washroom and C.G. worked her full shift that day.
19After that second April assault, C.G. reluctantly realized that she would not be able to continue working there. She “loved” the job and the restaurant. She had a hard time imagining her life without that job. As she worked that final shift on the day of the assault, she thought to herself throughout the day, “this is the last time, I will do this”, with respect to each of her tasks. However, she realized she could not return to work as he would simply keep assaulting her each time they were alone.
20When C.G. got home from work, she noted bruises up and down her legs. She took photos of them. She was upfront in her testimony and informed the court that some of the bruises in the photos pre-dated the assaults.
21Although she decided at work that day that she would not return, she was still apparently conflicted with that decision after she left work. She did not tell her boyfriend about the assaults, as she knew that he would not let her return to work. Instead, she called R.R., another female employee, who was close to her in age. The two of them had not socialized often if at all prior to that point. However, when C.G. called, R.R. agreed to meet that evening, that is the evening of April 11, 2018. R.R. disclosed to C.G. that C.M. had harmed her as well. R.R. and C.G. talked for a few hours that evening at a pub about what C.M. had done to them.
22After hearing C.G.’s story, R.R. immediately decided that she was quitting her job and that she was going to report her allegations to police. R.R. encouraged C.G. to do the same. The next morning, R.R. and C.G. met for breakfast. Again, according to R.R., she encouraged C.G. to report the allegations to authorities. With R.R.’s encouragement, C.G. went with R.R. to the police station, where they both reported allegations on April 12, 2018.
23At the station, C.G. initially spoke to Officer McQuoid and provided him with an overview of her allegations and then gave a formal statement to a second officer. In her overview, she included the fact that Bob was there and that he saw her immediately after the second April assault.
R.R.’s Allegations
24R.R. testified that she was assaulted several times. One of those assaults occurred when she was alone with C.M. in the restaurant in late 2017 or early 2018 and she was 25 years old. She was filling a bucket with water at the sink and could see C.M. approaching out of the corner of her eye. As she turned around, he pulled her in for a hug, put his arms around her and one of his hands reached around her behind and through her legs to the crotch of her pants. She described it as if his hand was on her vagina over her clothes. The assault was momentary. He walked away before she could process what he had just done.
25She testified that she told her boyfriend J.C. about the assault later that day and specifically told him that C.M. reached through her legs and touched her vagina over the clothes. J.C. testified at trial in 2022. He was unclear of the details from four years earlier, but believed R.R. told him that C.M. had touched her inner thigh, rather than her vagina, over the clothes.
26R.R. testified that on another occasion in the same time period, she was in the back room of the restaurant, crouched down on the floor, filling up small jam jars when C.M. approached her from behind. He whispered or mumbled sounds in her ear, then nibbled on her ear and made his way down to her neck. It was as if he was kissing her neck and then gave her a small bite. After the momentary encounter, he walked away quickly. She testified that she told J.C. about this assault after it happened, and J.C. confirmed as much.
27According to R.R., C.M. also “smacked” her behind as she came into the restaurant on a total of three or four occasions. She did not distinguish one time from another and gave no further detail about these assaults.
E.R.’s Allegations
28A third complainant, E.R., worked at the breakfast restaurant from the ages of 15 to 18 years old. She complained of two incidents. According to her testimony, C.M. touched her at a Christmas party the restaurant threw for its staff in 2017. The party was at a pub in Whitby called the Brock House. E.R. left the party at the end of the night with three of her co-workers including a female Crown witness D.T., another complainant V.F. and a male who did not testify, D.X.. D.X. was the driver. C.M. followed the four of them out of the pub and caught up to them in the parking lot when they were just outside D.X.’s car. V.F. was on one side of E.R. and D.T. was on the other. E.R. testified that C.M. approached her from behind and touched her inappropriately.
29According to E.R., C.M. grabbed one of her breasts with one hand and her behind with his other hand and then said in her ear, “You are the whole package.” The assault was momentary and thereafter, E.R., D.T., V.F. and D.X. got in the vehicle and drove away.
30D.T.’s and V.F.’s version of events was similar to that of E.R., except:
(i) D.T. and V.F. both testified that C.M. came up behind E.R. and cupped both of his hands on her chest. Neither one suggested that he touched her behind. In fact, D.T. explicitly rejected the possibility that one hand was on E.R.’s chest and the other on another part of her body. (ii) V.F. denied that D.T. was nearby at the time of the assault, but remembered that she was in the car after the assault. (iii) Although D.T. heard C.M. say, “You are the whole package”, V.F. did not. V.F. only saw C.M. whisper something in E.R.’s ear.
31E.R., V.F. and D.T. all testified that after the assault, they got into D.X.’s vehicle and immediately talked about what had just happened. E.R. testified that when they got into the car, they all acknowledged what had happened and V.F. and D.T. confirmed that they saw what C.M. had done. V.F. testified that E.R. got into the vehicle and while “obviously disturbed”, told V.F. and D.T. that C.M. had just “groped” or “grabbed” her and told her she was the full package. Whereas according to D.T., E.R. was wide-eyed in surprise when she was assaulted and once inside the car, E.R. asked, “did you just see that?” D.T. testified that E.R. did not say that C.M. called her the full package.
32According to E.R., C.M. assaulted her a second time at the end of a workday. Just before the assault, E.R. was alone with a customer in the restaurant and the customer asked for her phone number. She refused to provide it. The customer left and soon thereafter C.M. arrived at the restaurant to help E.R. close up. E.R. told C.M. about the customer asking for her number. C.M. came up behind E.R., grabbed her waist, rocked her back and forth and attempted to kiss her neck. It was unclear to her if he actually kissed her neck, or whether her hair got in the way.
V.F.’s Allegations
33The final complainant, V.F., testified that C.M. assaulted her in October 2017, when she was 17 years old. The two of them were in a narrow hallway between the bathrooms and the front of the restaurant. The restaurant was open at the time and others were around. She was “rolling cutlery”. He came up behind her, put his hands around her waist and momentarily pressed his pelvic area into her. He then walked away. In her statement to police, she explained that she did not report that assault to anyone, including her family, at the time as she had believed that it may have just been a hug.
34V.F. testified that C.M. assaulted her once again in April 2018, when they were at the restaurant and others were around. He came up behind her, made a purring noise into her ear, and licked her left ear. After the momentary encounter, he walked away as if nothing had happened. She testified that she told her family about this incident right away. However, she did not decide to stop working at the restaurant until later.
THE DEFENCE CASE
35C.M. called “Bob” as a witness. Bob described himself as a regular customer at the restaurant. He was there five or six times a week in 2017 and 2018, and was often there by 7:00 am. He had a good relationship with the staff and the owners. He talked to C.M. regularly when he was there.
36Bob testified that the staff appeared to genuinely all get along and work particularly well together. According to Bob, that was a key reason why the regular customers enjoyed the atmosphere at that restaurant over other restaurants. He described it as if the staff were all, including the owners C.M. and D.M., a close-knit group of people that all had a common goal of making the restaurant an enjoyable place to be.
37Bob seemed to have a particularly good relationship with C.G.. She had by choice sat down and had breakfast with him a few times. She spoke to Bob about her boyfriend and his career path. Her boyfriend was interested in law enforcement and Bob’s son was a police officer. Bob indicated that his son would be more than willing to sit down with C.G.’s boyfriend to discuss what needed to be done. C.G. did not end up taking Bob up on that offer. C.G. also talked to Bob about her grandfather’s death and about moves she had made.
38Bob described C.G. in a way that most people could only dream of being described. He indicated that she was always friendly, cheerful, and bubbly. He indicated that everyone saw her as a bright light, and people were just drawn to her. At the same time, she was always professional, she always worked hard, and she always presented herself well. He could see that she genuinely and thoroughly enjoyed her job at the restaurant.
39Bob presented well. He came across as genuine. He was fulsome in his answers. It seemed that he genuinely wanted to provide as much relevant information as he could, so that the court would be in a position to get to the truth in the matter, whatever that truth may be. Bob refreshed his memory on some issues with the aid of his journal. He kept a daily journal, which he mostly used to keep track of work he had done and work he needed to do going forward.
40Bob learned about the criminal charges against C.M. within a couple of days of the April 12, 2018 arrest. He remembered coming into the restaurant two days later, on Saturday April 14, and “everything” had changed. The changes had an impact on Bob, such that that Saturday sticks out in his memory. At that time, within days of the alleged attack on C.G., Bob racked his brain to try to remember if he had ever seen anything inappropriate, or recently seen anything out of the ordinary. Nothing stood out. He had no memory of any signs of inappropriate behaviour.
41When Bob learned that C.M. had been charged, he was concerned about both the servers and the two owners. His concern for all parties appeared to be genuine.
42Despite Bob’s pivotal role in C.G.’s April 11, 2018 allegations, he was never interviewed by police. Defence counsel first approached him to find out if he had any useful information in March 2019.
43At trial, Bob had no independent recollection of when he went to the restaurant on April 11, 2018, which was the date of the final alleged assault. However, after reviewing his journal, he could definitively say that he was not at the restaurant before 9:45 am that day. His journal revealed that he had a meeting at the west end of Toronto at 9:45 and he knew it would take at least two hours to travel there at that time of day. He was clear that it was not possible that he had breakfast at the restaurant in Whitby after 7:00 am before going to that meeting. He further testified that his journal had to remain accurate as he used it for work to remember when meetings had occurred. When asked whether it was possible that he did not go to the April 11, 2018 meeting that was marked in his journal, he laughed.
44Despite rigorous cross-examination, he could not allow for the possibility that he was at the restaurant close to 7:00 that day. He also had an independent recollection of the restaurant being busy when he came in that day, which he remembered as it was the last day he saw C.G. and only a few days before he learned about the allegations. It was clear, from his testimony, that the restaurant was never busy before 8:00 am during the week.
45Bob also had a clear memory of leaving the restaurant that day. He testified that it was so busy, C.G. was multitasking as he was on his way out. He told C.G. that he would see her the next day, but she responded that he would not see her, as she was taking a couple of days off. He then said something to the effect of, “see you Saturday”. He did not hear if she responded as he was already on his way out. Bob was cross-examined on the possibility that this conversation happened on another day, he did not allow for that possibility. He explicitly remembers being surprised when C.G. did not come in that Saturday (April 14, 2018), in light of the conversation he had had with her three days earlier.
46Bob further testified that despite racking his brain in mid-April 2018, for any signs of anything out of the ordinary, he had no memory of C.G. ever being in any state of disarray. She was always put together very well. He had never noticed her sweaty or flustered. However, he acknowledged that he would not have noticed anything about her make up. When asked if she ever had her hair out of place, he testified that he had a distinct recollection of C.G. opening the restaurant one time in 2017 and realized after Bob had come in, that she had not put her hair up in a ponytail. She then went back to the women’s washroom and fixed her hair. Bob explicitly denied the possibility that C.G. showed any signs of distress, disarray or unhappiness in April, 2018.
47Bob adamantly denied that he would ever have said anything even similar to “7:00 really snuck up on you, eh?”. He was almost offended by the suggestion. He indicated that if he noticed something was out of the ordinary, he might have asked if C.G. was okay, but he would never have made a “flippant” comment in relation to, or joked about, her appearance or her preparedness for work.
48Bob furthermore testified to the effect that if he had been there on April 11, 2018, he would have remembered if the lights in the restaurant were turned on after 7:00 am. He testified that the lights came on at 7:00 am like clockwork every day to invite customers inside. According to Bob, they were “pretty spot on” in turning the lights on at 7:00, there was the “odd time” the lights were turned on at 7:02, but Bob denied they were ever turned on as late as 7:05.
49He noted that when he arrived before 7:00 am the lights in the kitchen would be on, but the lights at the front of the restaurant were kept off until the restaurant opened. If he arrived before 7:00 am he would park a ways away from the front door. From his parking spot, he could not see people if they were at the front of the restaurant, he could only see shadows moving around. However, he could see people in or near the kitchen from his parking spot from the kitchen lights.
50With respect to bruises, Bob remembered C.G. having a bruise mid-2017. It was red and circular and he noted that given her complexion, it was fairly noticeable. It was the size of a quarter on the inside of her left bicep. He did not notice any other bruises on C.G.. However, according to Bob, she wore a long-sleeve t-shirt under her uniform to work most days, so he may not have seen the bruises.
LEGAL PRINCIPLES
51The Crown has the onus of proving the allegations beyond a reasonable doubt. If I find that a complainant is probably telling the truth, that is not sufficient for a finding of guilt. The Crown need not prove the allegations to an absolute certainty, but the Crown’s burden is much closer to that threshold, than it is to a balance of probabilities (R. v. Starr, 2000 SCC 40 at para. 242).
52Although the accused did not testify in this case, the Defence did introduce potentially exculpatory evidence. If I find that the Defence evidence is exculpatory and I believe it to be true, I must obviously acquit. Even if I do not believe the exculpatory evidence to be true, I must consider whether it raises a reasonable doubt. And further, if none of the evidence introduced by the accused raises a reasonable doubt, I must further consider whether the evidence that I do accept proves the allegations to the requisite degree (R. v. W. (D.), [1991] 1 S.C.R. 742).
ANALYSIS
C.G.
53I start my analysis of the allegations with a focus on C.G.
54I found that the way C.G. delivered her testimony to be compelling. Unlike some of the other complainants, she did not come across as angry at C.M. Nor did it seem as if she wanted him to suffer for sexually assaulting her. She did not hesitate before answering the questions. She did not appear to be exaggerating. She offered answers to questions that she had to know were harmful to the Crown’s case against C.M. Although the Defence suggested there were internal inconsistencies in her evidence and prior inconsistent statements, I find that there were no material inconsistencies. Overall, she came across as a witness who was simply answering the questions put to her truthfully to the best of her ability.
55There is also evidence that she knew there would be negative consequences to her coming forward with these allegations – including losing her job. In other words, there is evidence C.G. had a motive not to fabricate. There is not a lot of guidance on the use a court may make of a motive not to fabricate. In my view, a motive not to fabricate must be distinguished from a lack of evidence of motive to fabricate , since a motive to not fabricate is based on evidence presented by the Crown, whereas a lack of evidence of motive to fabricate is based on, not surprisingly, a lack of evidence. This is a significant distinction since the court must be very cautious about relying on a lack of evidence to bolster the Crown’s case as it is difficult for the defence to challenge a lack of evidence, and there is a real risk of the burden erroneously being shifted onto the defence (R. v. S.S.S., 2021 ONCA 552). In contrast, since the evidence of a motive not to fabricate is based on actual evidence, the defence has the ability to challenge that evidence.
56I further note that both a motive not to fabricate and a lack of evidence of motive to fabricate, are distinct concepts from a lack of motive to fabricate, which relates to the rare situation where the Crown proves that the complainant had no motive to falsify allegations.
57Unlike the issues of a lack of motive to fabricate and a lack of evidence of motive to fabricate, there is little guidance on the issue of a motive not to fabricate . In R. v. Brown, 2006 BCCA 100, the Court of Appeal for British Columbia accepted that a motive not to fabricate is a relevant factor in assessing the strength of the Crown’s case.
58The issue of motive not to fabricate was raised in Ontario in R. v. L.L., 2009 ONCA 413, in which Simmons J.A. noted that “evidence of negative consequences that may ensue from making serious allegations” (or a motive not to fabricate) does not prove “the absence of a hidden motive” (para.45). In this passage, Simmons J.A. highlights the fact that even where the Crown proves the complainant has a motive not to fabricate, the court should be cautious in relying on such evidence to bolster the Crown’s case since the complainant may have a hidden motive to fabricate – a motive unknown to the court - which far outweighs the motive not to fabricate. Simmons J.A. implicitly found that evidence of a motive not to fabricate was a proper consideration in assessing the complainant’s credibility, but was only one factor amongst many the court should consider (para. 53).
59The Court of Appeal for Ontario also touched on the issue in S.S.S, supra in which Feldman J.A. concluded that the trial judge erred in finding that there was evidence of a motive not to fabricate, since there had been no evidence introduced at the trial to support that conclusion (paras. 21 and 26). It is unclear from her decision whether a motive not to fabricate would have been a proper factor to consider, had there been evidence to support it.
60Arguably, there is a motive not to fabricate in every sexual assault trial, since the trial process itself is not a pleasant experience for complainants. In R. v. Batte, (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 123 , R. v. J.C. , 2021 ONCA 131 at para. 87-90 and R. v. R.M., 2022 ONCA 850 our Court of Appeal addressed whether triers could consider the fact the complainant would not want to go through a trial to bolster the complainant’s credibility, and suggested that it could only be considered in limited circumstances, if at all. As Paciocco J.A. stated in J.C. , beginning every sex assault trial on the premise that reporting a sexual assault favours a finding of guilt, is inconsistent with the presumption of innocence. The motive not to fabricate in the case at bar – being that the complainant would lose her job – is different in kind than the motive not to fabricate referenced by Paciocco J.A., because it is independent of the trial process. Relying on C.G.’s motive not to fabricate in this case, would not be inconsistent with the presumption of innocence.
61When the cases on motive not to fabricate are all read together, it seems that where the Crown has introduced case specific evidence of a motive not to fabricate, it is a piece of circumstantial evidence that the court can consider. There are no special rules to its admissibility. However, the court should be cautious in relying on such a motive as the complainant may have a hidden motive to fabricate that far outweighs the motive not to fabricate.
62Applying that logic to this case, the Crown has demonstrated that C.G. did not want to lose her job. C.G.’s evidence that she loved her job and did not want to report her allegations for that reason, was compelling in its detail and was corroborated by Bob. The Crown demonstrated C.G. had a motive not to fabricate, which tends to bolster her credibility. However, I must be cautious about putting weight on that motive, since C.G. may also have a motive to fabricate that I am unaware of which far outweighs the drawback of losing her job. For these reasons, I find that she has a motive not to fabricate, but put little weight on that finding.
63In addition to C.G.’s compelling demeanour and the fact that she had a motive not to fabricate, there is also some evidence of corroboration. [1] In particular, there is independent evidence of bruising. Officer Lamb testified, with the assistance of notes dated April 13, 2018, that as of April 5, 2018 C.G. had a bruise on her arm. R.R. similarly noticed a bruise on C.G.’s bicep “not long before” C.M.’s arrest and E.R. noted C.G. had a circular bruise on her “upper arm” in the spring of 2018. However, C.G. did not allege that C.M. did anything specific that would have left a circular bruise on her bicep, and the bruise could have been from carrying plates at work. Notably, Bob testified C.G. had a similar bruise on her bicep in 2017.
64There was also evidence that C.G. suffered substantial bruising after the second April attack. There are photographs of considerable bruising on the bottom half of both of her legs, which she testified she took as soon as she got home on April 11, 2018. However, there is no corroboration of her evidence that those photos were taken on April 11 th or that she had bruises that day. Although she spoke to R.R. for hours that night and again the next morning, there is no evidence she told R.R. about or showed R.R. the bruises. In fact, when R.R. was asked if she ever saw any marks on C.G., R.R. only mentioned a bruise that she noted before April 11, 2018. Despite the severity of the bruising and the fact C.G. reported the allegations immediately, no witnesses corroborated the evidence that she suffered that bruising in April, 2018. Even on C.G.’s evidence, not all of the bruises could be attributed to the attacks. Considering all of these factors, I put little weight on the evidence of bruising.
65Overall, I found C.G.’s testimony compelling, I put some weight on the motive not to fabricate and there was some, albeit minimal, corroboration. However, there are reasons to question the evidence of C.G., namely:
(I) C.G. could not say whether C.M. had pubic hair, which is relevant considering she testified that C.M. showed her a photo of his penis, that C.M. masturbated in front of her, that C.M. presented himself as buck naked during the first April allegation and that C.M. was naked from the waist down in her second April allegation. (II) C.G. testified that she did not see any noticeable marks or tattoos on C.M., yet he had a tattoo of his last name in big block letters. The letters were close to a foot tall. She admittedly was in a position to see his back several times in the April attacks, for example when he bearhugged her legs. However, she also testified that she closed her eyes during parts of the attack. (III) Her allegations were somewhat implausible. She alleged that out of the blue, he appeared buck naked in the hallway and started a very violent, physical, sexual assault at a time when he would have been visible from the parking lot through the windows. Deliveries could have been made at any moment. She further alleged that after he digitally penetrated her, while naked himself, he just ended the assault, helped her up, asked if she was okay and told her that he loved her. (IV) The Defence highlighted a number of inconsistencies in her testimony. I find the inconsistencies to be minor. (V) Last, but certainly not least, is the evidence of Bob. (i) Bob denied the possibility that he was in the restaurant on April 11, 2018 near 7:00 am. He arrived sometime after 9:45 am that morning; (ii) Bob was adamant that C.G. and C.M. were not alone in the restaurant when he arrived on April 11, 2018. In fact, he distinctly remembers the restaurant was busy; (iii) Bob denied the possibility that C.G. was ever sweaty, in a state of disarray, or showed any signs of distress when he was at the restaurant; (iv) Bob denied that in April 2018, or in any time in 2018, C.G. went to the washroom to put herself together after he arrived at the restaurant. He notably has a distinct memory of C.G. having to go to the women’s washroom to fix her hair at the beginning of a morning shift in 2017, but not 2018; and, (v) Bob testified that C.G. wore a long-sleeved shirt under her uniform most days, which puts into question her evidence that she explicitly decided to wear an undershirt as “extra” clothing on April 11, 2018, because she feared she was going to be sexually assaulted again by C.M.
66The fact that Bob contradicted her evidence in material ways is particularly troubling considering that Bob appeared to care for C.G., as well as C.M. As stated earlier, Bob came across as if he wanted to supply the court with as much relevant informant as possible, so that the court could get to the truth. In short, he came across as credible. He also came across as fairly reliable, since he had made contemporaneous notes as to what he did on April 11, 2018. I further note that he had a distinct memory of C.G. going to the women’s washroom to fix her hair after he came into the restaurant in 2017, which he found out of the ordinary, but when he racked his brain in mid-April, 2018, for something that had happened out of the ordinary, he could not think of a time when she had recently gone to the washroom to collect herself.
67Generally, I found Bob both credible and reliable.
68I now turn to whether I can reconcile the evidence of C.G. with the evidence of Bob:
I. The Crown’s position is that although Bob is credible, he is not reliable since he was not asked to recall what happened on April 11, 2018 until close to a year after the event. The problem with that theory is threefold: (i) Within days of the arrest, Bob racked his brain for any sign of recent problems with the staff in the restaurant to no avail; (ii) Bob laughed at the suggestion that his journal might not be accurate, he laughed at the suggestion that he may not have had a meeting at 9:45 on April 11, 2018; and, (iii) Bob denied that he would have ever said anything similar to what C.G. attributed to him that morning. II. There is another regular named Bob and it is possible that C.G. saw the other Bob on April 11, 2018. However, the other Bob was referred to as “Bob 2.0”, rather than Bob. More importantly, C.G. suggested it was the Bob who was there regularly at 7:00 am who she saw on April 11, 2018, and the Bob who testified was the one who was regularly there at 7:00. Not surprisingly, Crown counsel did not suggest that C.G. was referring to the other Bob. III. C.G. could possibly have mistaken the date. However, that is very unlikely given that C.G. reported the allegations the next day and that Bob has a specific memory that the last day C.G. ever worked at the restaurant was on April 11, 2018. IV. C.G. could be confused as to who she saw (Bob or another customer), or if she saw anyone in the midst of the attack. However, she included Bob in her version of events as given on April 12, 2018, the day after the attack.
69Therefore, a significant portion of C.G.’s version of the April 11, 2018 attack is directly contradicted by the credible and reliable evidence of Bob. And Bob’s testimony is not the only issue with her evidence; there are also issues regarding her memory of the pubic hair, her knowledge of the tattoo, and the plausibility of her version of events. There are enough issues with her evidence as to what happened on April 11, 2018 that I have a reasonable doubt that there was an assault as she alleges. I therefore find C.M. not guilty on count 8.
70I turn to C.G.’s other allegations. I cannot ignore my findings with respect to the April 11, 2018 allegations in assessing C.G.’s overall credibility. Given Bob’s testimony, I am left questioning whether C.G. was assaulted at all on April 11, 2018, and significantly, C.G. reported that assault within 24 hours. Given the contemporaneous nature of the report, my reasonable doubt is linked to not only C.G.’s reliability, but her credibility. In other words, the fact that Bob – who I find credible and reliable - contradicts one of C.G.’s allegations as they were reported within 24 hours, makes me question whether C.G. is intentionally misleading authorities with respect to C.M.
71In terms of corroboration, I have already mentioned the minimally corroborative bruises. There is also similar fact evidence. I allowed the mid-trial similar fact evidence application, such that I am permitted to consider the allegations of the other complainants to bolster the Crown’s case of C.G.’s allegations dated late 2017 and early 2018. However, for the most part her allegations differ substantially from the allegations of the others, in that her allegations involve C.M. being nude. I acknowledge that she did make general comments that he did things such as slap and grab her behind while they were at work, and these allegations are consistent with some of the allegations of the other complainants. However, these allegations were not unique or unusual, nor did she provide any details about the circumstances that made them unique or unusual. Moreover, she spoke to some of the other complainants about C.M.’s inappropriate behaviour prior to going to authorities and her memory may have been tainted. In all the circumstances, I put little weight on the similar fact evidence in assessing C.G.’s allegations.
72As I indicated earlier, I found C.G. to come across as believable and she had a motive not to fabricate. From these factors, I find that she probably was assaulted as she described. However, a finding that she was probably assaulted is not sufficient and I must be cautious about putting too much weight on her demeanour or motive to not fabricate. Given the issues I have with her credibility as a result of Bob’s testimony, I am left with a reasonable doubt with respect to all of her allegations. I find C.M. not guilty on counts 1 through 6.
V.F.
73Turning to the allegations of V.F., I have serious concerns that her memory of her first allegation has been inadvertently tainted by learning of the other allegations. In R. v. F.(J.) (2003), 177 C.C.C.(3d) 1; 16 C.R.(6 th ) 317 (ON CA), Feldman J.A. cautioned triers about the possibility of such tainting:
The reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns.
See also: R. v. Dorsey , 2012 ONCA 185 R. v. Wilkinson , 2017 ONCA 756
74Feldman J.A.’s concerns are alive in the first allegation of V.F.. V.F. testified that C.M. grabbed her waist from behind and moved back and forth as he pressed his pelvic area into her behind. V.F. was working in a narrow hallway at the time; the hallway led to the washrooms. At trial, she refuted the possibility that he was just hugging her. However, she had told police that it was a possibility. In her statement that was introduced as part of her trial evidence, she said:
The hugging could’ve just been him hugging me, I guess I could see how that..I don’t actually think it was that…Yeah, I don’t actually think it was him trying to hug me whatsoever, but at the time I was kinda like I guess making like a …just fluffing it off and making an excuse for it. But as soon as he licked my ear I was like, ‘kay, no one just licks an ear, that’s not a thing that people do to one another.
75According to V.F., she did not immediately tell her family or friends about the first incident, but she did report the licking as soon as it happened. She proceeded to tell police that after the licking incident, she made the decision to avoid C.M. to the extent possible, even while at work, and that if he touched her again inappropriately, she would quit. These actions are consistent with her being unsure, prior to the second incident, that the first incident was an intentional inappropriate application of force.
76I recognize that after she heard C.G.’s allegations, she is confident that the first incident was an assault. However, it seems as though C.G.’s allegations only served to “ reinforce a perception about which [she] had doubts or concerns” (language from R. v. F. (J.)). Due to these reliability concerns, I am not satisfied that V.F. accurately remembers what C.M. did that first time. I therefore cannot be satisfied beyond a reasonable doubt that the first allegation of V.F. was either objectively sexual in nature, or that C.M. was acting for a sexual purpose. I find C.M. not guilty of counts 21 and 22.
77On the other hand, I find that V.F. was credible. She did not come across as if she was attempting to embellish anything. She was not confronted with any prior inconsistent statements. I obviously have concerns with the reliability of her testimony in that her memory may have been tainted. However, I accept her evidence that she told her family members immediately after she was licked, and the fact she did so limits the possibility that her memory of this event was tainted from hearing the allegations of the others. (To be clear, I am not using the fact that she made a prior consistent statement to bolster her credibility. I am using the timing of the statement to rebut the suggestion that her memory of what happened was tainted.) In general, I found her evidence that C.M. licked her ear compelling.
78Her testimony that C.M. licked her ear was not aggressively challenged and there was no evidence to contradict her.
79Based on her evidence, I find beyond a reasonable doubt that C.M. licked her ear. There is no suggestion that she consented to the lick and a lick on the ear is objectively sexual. I therefore find C.M. guilty on count 23.
80C.M. is also charged with sexual exploitation in relation to the lick of V.F.’s ear (count 24). In R. v. Aird, 2013 ONCA 447, Laskin J.A. noted the elements of sexual exploitation under s.153 of the Criminal Code, include:
(i) The appellant engaged in a form of sexual conduct prohibited by s. 153(1) ; (ii) The complainant was at least 16 and under the age of 18 when the conduct occurred; (iii) The appellant had the mens rea for each element of the offence; and, (iv) The appellant stood in a position of trust towards the complainant when the sexual acts took place.
See also: R. c. Audet , [1996] 2 S.C.R. 171 (S.C.C.), at para. 16 .
81As noted, I have found beyond a reasonable doubt that C.M. licked V.F.’s ear, while V.F. was employed by C.M. V.F. was five months shy of her 18 th birthday at the time. Therefore, the first, second and fourth elements of the offence have been proven.
82The question is whether the Crown has proven the third element, namely that C.M. had the mens rea for the offence. In particular, the only issue could be whether he knew, was willfully blind or was reckless as to whether V.F. was not yet 18. ( s.150.1(5) of the Criminal Code and R. v. Carbone, 2020 ONCA 394 at para. 131 ).
83V.F. testified that D.M. was the one who hired her and there is no evidence that C.M. saw V.F.’s employment record. It would have been apparent to C.M. that V.F. was in high school, however there are 18 years old students at high school. The only evidence that C.M. possibly knew she was under 18 was the evidence that V.F. had a conversation with a girlfriend over a year and half before the offence about celebrating her sixteenth birthday. V.F. recalled that C.M. was nearby at the time of that conversation. Although he may have been nearby, there is no evidence he was listening. The Crown has not proved that C.M. knew she was underage.
84It is reasonable to infer that he knew she may be under 18 and the evidence suggested that he never confirmed with V.F. herself that she was of age. However, considering there is a paucity of evidence as to his belief with respect to her age and a paucity of evidence as to whether he spoke to others about her age, I am not satisfied beyond a reasonable doubt that he knew, was willfully blind or was reckless as to her age. The Crown has not met its onus. I therefore find C.M. not guilty on count 24.
E.R.
85E.R. testified that C.M. assaulted her twice. The first incident occurred in a parking lot after the staff Christmas party at the Brock House in Whitby. According to E.R., she was a bit tipsy when she left the party with two female co-workers, V.F. and D.T., and one male co-worker who was their driver, D.X. The four of them had almost reached the vehicle when C.M. caught up to them. E.R. saw C.M. approach her from behind, put one hand around her and grab her breast and put the other hand on her behind. He then whispered in her ear, “you are the full package”. E.R., V.F. and D.T. then all got into D.X.’s vehicle and spoke about the incident briefly. They all acknowledged what had happened. V.F. and D.T. confirmed that they saw him touch her.
A. Weaknesses with the Crown’s case on this count
86There are reasons to be cautious of E.R.’s testimony:
(1) Her description of the assault was contradicted by V.F. and D.T.; (2) There is evidence of collusion. In fact, there is evidence that E.R. called D.T. after E.R. testified, to ensure that D.T.’s testimony would be consistent with hers; (3) There is evidence of a motive to fabricate; and, (4) E.R. had consumed alcohol that evening.
(1) The Contradictory Evidence
87The Defence submits that the versions of events as recounted by D.T., V.F. and E.R. are so different that the inconsistencies between their versions should raise a reasonable doubt as to whether she was sexually assaulted in any fashion.
88The versions of D.T., V.F. and E.R. are for the most part consistent. According to all three of them, they left the Christmas party together, C.M. followed them into the parking lot, C.M. approached E.R. from behind, C.M. reached around and grabbed E.R.’s chest and said something into her ear. The three of them then got into D.X.’s vehicle with D.X. and discussed the assault. Their versions are inconsistent in that E.R. testified that only one hand was on her chest and the other was on her behind, whereas D.T. and V.F. suggested her breasts were grabbed with both hands and her behind was not touched at all.
89I find the inconsistency is immaterial. This was a momentary assault, witnessed at night in a parking lot. The three of them had different vantage points and different opportunities to observe the event. There are several reasons why they may have remembered the assault a little different. What is significant is they all remember him grabbing her chest. They remember she was groped. And they are consistent with respect to all of the surrounding circumstances. The inconsistency in their descriptions of the assault is not such that it puts into question whether she was indeed assaulted.
(2) Collusion
90The Defence further argues that the court should be concerned about possible collusion or tainting. All three of the witnesses to this incident testified that as soon as they got into the car, they discussed the allegations, and there may have been further conversations about this incident on later dates. These discussions may have tainted their memories of the incident and accordingly, I accept that I cannot use the evidence of one of them to corroborate the others. Instead, I focus on the evidence of E.R. herself, and consider whether her evidence was possibly tainted by that of V.F. or D.T.
91I recognize that it is possible that her memory of the incident is tainted by the conversation in the car. However, it is highly unlikely that there was no sexual assault at all and yet her memory is tainted from the conversation to the extent that seconds later she believes that she has been assaulted. More importantly, I find that E.R. is the one who initially mentioned the assault in the car. Both V.F. and D.T. testified that E.R. was the one who indicated she had been assaulted when they got into the car and although E.R.’s testimony is not as clear on this point, her evidence could be read to be consistent with the others. [2] Since E.R. started the conversation by telling the others that she in essence had just been sexually assaulted by C.M., it is apparent that her memory that she was indeed assaulted was not the product of tainting.
92The more concerning evidence of collusion is D.T.’s evidence that E.R. called her after E.R. testified to talk about what happened on the day of the 2017 Christmas party. E.R. seemingly wanted to ensure that D.T.’s evidence would line up with hers. However, notably, the key portion of their evidence did not line up. According to E.R. the assault was one hand on her chest and the other on her behind, whereas according to D.T. the assault involved two hands on E.R.’s chest. They clearly did not put any effort into ensuring their evidence would line up. Furthermore, D.T.’s candour on the stand with respect to the fact that she spoke to E.R. about the allegations before she testified, suggests that their discussion was not an attempt to obstruct justice. I do not find that the evidence supports a finding that the witnesses to this assault were intentionally attempting to mislead the court.
93Although I find the evidence of collusion troublesome, it does not support a finding that E.R. intentionally fabricated the allegations, or that her memory of being sexually assaulted in some respect was tainted.
(3) Motive to Fabricate
94I accept that E.R. had a motive to fabricate in that she explicitly wanted to assist C.G.. She told C.G. that she had C.G.’s “back over everything” else. It is furthermore apparent from E.R.’s testimony that she did not like C.M. However, the fact that E.R. disclosed the assault to others within seconds of the assault itself in December 2017 and then did not report the allegations until months later (after C.G. and R.R. reported), reveals that she did not fabricate this assault to see C.M. convicted of an offence. Thus, although the Defence rightly raised concerns with E.R.’s motives, I find that the concerns are all addressed by the evidence.
(4) Consumption of alcohol
95Finally, I consider the evidence that E.R. consumed alcohol that evening. She testified that she only consumed a few drinks, but her evidence on this issue was inconsistent and therefore somewhat unreliable. Although I take judicial notice that alcohol impacts memory over time, I cannot take judicial notice that it impacts her memory substantially within seconds. I have no basis to find that due to alcohol she believed when she got into D.X.’s vehicle that she had been sexually assaulted seconds earlier, when she had not been touched at all. I further accept the evidence of V.F. and D.T., who suggested that although C.M. and D.M. permitted them to drink underage (under 19 years old) at the Brock House, their consumption, along with that of E.R. who was also underage, was limited. I find that the evidence of alcohol consumption does not materially impact the reliability of E.R.’s evidence that she was touched in an objectively sexual way.
B. Strengths with the Crown’s case on this count
96I found the Crown’s case on this count compelling, since the timing and circumstances of the initial disclosure provided some guarantees of reliability. In particular, the fact E.R.. disclosed the assault to her friends within seconds of the assault itself, means she did not have time to fabricate, and it is unlikely that E.R.. would have claimed to her friends that C.M. had just assaulted her, if he had not, since they had likely observed what had actually happened.
Conclusion with Respect to the Christmas Party Assault
97I accept that there are reasons to be cautious about relying on E.R.’s testimony. In fact, when I consider the issues cumulatively, I am not entirely convinced the assault occurred exactly as she remembers. However, when I consider the evidence as a whole, I am convinced beyond a reasonable doubt that her chest was grabbed, and she was assaulted. Most significantly, I rely on the timing of her disclosure to her friends to refute many of the issues raised by the Defence. I also rely on the timing and circumstances of the initial disclosure to bolster the Crown’s case, as those circumstances provide some guarantees of reliability.
98There are no significant weaknesses with E.R.’s evidence that are not addressed in the evidence and generally, the Crown’s case regarding the assault on E.R. at the Christmas party is compelling. There is no evidence to suggest that she was not inappropriately touched that evening. None of the alleged issues alone or together raise a reasonable doubt. I find that the Crown has met its burden on this one count and C.M. is guilty of count 10.
99Since E.R. was 17 at the time of the Christmas party assault, C.M. is also charged with sexual exploitation under s. 153 of the Criminal Code in relation to his incident . Since I have concluded the C.M. sexually assaulted E.R. while E.R. was employed by C.M. and while she was under 18, three of the four elements of sexual exploitation were proven by the Crown. The only issue is whether C.M. subjectively believed, was willfully blind or was reckless as to whether E.R. was under 18 (R. v. Carbone, 2020 ONCA 394 at para. 131).
100This offence occurred a month before E.R.’s 18th birthday. There is no direct evidence that C.M. knew her age or her birthday. E.R. testified that D.M. was the one who hired her, and thus, there is no evidence C.M. saw her birthdate on any paperwork. At its highest, E.R. could only say that everyone who worked at the restaurant knew her age, because they knew she was in high school and knew she was not legally permitted to consume alcohol. However, as mentioned earlier there are 18-year-old high school students and at 18, she would not be permitted to drink. The evidence fell far short of proving that he knew she was not yet 18.
101Similar to the situation with V.F., it would be reasonable to infer that C.M. knew E.R. may be under 18 and the evidence suggests he did not confirm with E.R. that she was 18. However, there is a paucity of evidence as to what he believed her age was or whether he spoke to anyone else about her age. The Crown has not proven that he believed, was willfully blind or was reckless to the fact that she was under 18 at the 2017 Christmas party. I find him not guilty on count 11.
102With respect to the second allegation of E.R., there is no evidence that she spoke to anyone about this incident until after C.G. disclosed her allegations. Although E.R. spoke to several individuals about the Christmas party assault, there is no evidence she spoke to anyone about the second assault. Although I accept that he made her uncomfortable one day when she was alone with him closing up the restaurant, I am concerned that her perception of this event has been tainted after hearing C.G.’s allegations. These concerns are such that I have a reasonable doubt as to whether C.M. touched her in an objectively sexual way that day when she closed the restaurant with C.M. I find him not guilty on count 12.
R.R.
103Finally, with respect to R.R., she made three allegations. One involved general allegations of C.M. “smacking” her behind. She provided very little detail and was asked about it amongst a series of questions of background information. I am somewhat concerned that she did not realize that the “smacking” of her behind formed the basis for a conviction of a serious offence – sexual assault – and she therefore may not have been as careful in recounting that portion of her testimony. I am also concerned that R.R. told her boyfriend J.C. about her other two allegations, but seemingly never mentioned C.M. touched her behind. It was not until she spent hours speaking to C.G., that she alleged that her behind was touched. There is therefore a live possibility that her memory of what C.M. did to her was tainted from hearing C.G.’s allegations. Indeed, Crown counsel conceded that given the little detail with respect to this count, the court may very well have a reasonable doubt. For these reasons, I am not satisfied that he touched her behind and I find him not guilty on count 16.
104R.R. also alleged that C.M. wrapped his hands around her waist and reached around and touched her vagina over her pants. The fact that she told J.C. immediately after the event about being touched inappropriately, suggests that independent of her knowledge of the other allegations, she felt uncomfortable from his actions immediately. She knew they, in themselves, were inappropriate. I recognize that J.C. believes that R.R. told him that C.M. reached around and touched her on the inner thigh, rather than on the vagina. However, J.C. was not clear on that issue. Moreover, it is possible that hearing C.G.’s version of events may have tainted R.R.’s memory as to whether he touched her thigh or her vagina. However, whether he reached around and touched her vagina, or reached around and touched her thigh, it amounted to a sexual assault. I find the fact that she contemporaneously reported this sexual assault to her boyfriend, before knowing about the allegations of the other complainants and before she decided to report the allegations, renders her evidence reliable. To clarify, it is not the fact that she repeated her allegations more than once that bolsters her credibility, but the timing of the disclosure to her boyfriend that refutes many of the theories of the Defence.
105I find her uncontradicted evidence on this count compelling. In the circumstances, I have no reasonable doubt regarding whether he reached around and touched her inappropriately. I find C.M. guilty on count 14.
106Finally, R.R. testified that C.M. nibbled on her ear and kissed/bit her cheek. She told J.C. about this assault immediately after the event and the allegation of nibbling on the ear and biting on the cheek would be less prone to being tainted by other people’s versions of events. Similar to my findings with respect to count 14, I find that the fact that R.R. contemporaneously reported to her boyfriend, before she heard about the allegations of the other complainants and before she decided to report her allegations to police, renders her evidence reliable. Also similar to count 14, I find her uncontradicted evidence on this count compelling. For these reasons, I find C.M. guilty on count 15.
Conclusion
107In summary, I find C.M. not guilty on counts 1 to 6, 8, 11, 12, 16, 21, 22, 24 and find him guilty on four counts of sexual assault, namely counts 10, 14, 15, and 23.
The Honourable Madam Justice C. Verner
Released: January 12, 2023
COURT FILE NO.: 15167-19 DATE: 20230112 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.M. Defendant JUDGMENT The Honourable Madam Justice C. Verner
Released: January 12, 2023
1Note that the Crown brought a similar fact application mid-trial. I found that although I could consider the evidence across counts between the two April assaults against C.G., none of the other allegations could be considered in assessing whether C.M. committed either of those assaults.
2Although I do not use the evidence of V.F., D.T. and E.R. to corroborate each other about the offence, I do use the consistency in their evidence about the conversation in the car to find that the conversation happened as they all remember.
